DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ebrahim Hoosen
v
ISI Managed Services Pty Ltd
(U2021/2511)

Application for an unfair dismissal remedy – applicant not an employee of the respondent – high income threshold exceeded, not award covered – application lodged out of time and no exceptional circumstances – application dismissed

[1] This decision concerns an application by Mr Ebrahim Hoosen for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Mr Hoosen contends that on 4 March 2021 he was dismissed from his employment with ISI Managed Services Pty Ltd (ISI), and that the dismissal was unfair because, among other things, there was no valid reason for his dismissal and he received no warning about, or opportunity to respond to, ISI’s concerns about his performance. He seeks reinstatement or compensation.

[2] ISI objects to the application on three bases. First, it contends that Mr Hoosen was not an employee of the company and therefore could not have been dismissed within the meaning of s 386 of the Act. ISI submits that Mr Hoosen was rather an employee of his own business, BMCS Consulting and Education Pty Ltd (BMCS), a company with which ISI had a commercial contract for the provision of services. Secondly, the company submits that, even if Mr Hoosen had been its employee and was dismissed, his annual rate of earnings exceeded the high income threshold and he was not covered by a modern award or enterprise agreement, with the consequence that he was not a person ‘protected from unfair dismissal’ within the meaning of s 382 of the Act. Finally, ISI contends that any dismissal of Mr Hoosen took effect on 3 March 2021, the day a termination letter was delivered by express post to Mr Hoosen’s business address, and that Mr Hoosen’s application, which was lodged on 25 March 2021, is out of time and should be dismissed. For the reasons that follow, I have concluded that Mr Hoosen was not an employee of ISI or a person protected from unfair dismissal, and that his application must be dismissed.

[3] The procedural history of this matter should briefly be mentioned. Mr Hoosen failed to comply with the Commission’s directions that he file and serve an outline of argument and statements of evidence. The company applied under s 399A of the Act for his application to be dismissed. At a telephone hearing on 13 May 2021, I accepted Mr Hoosen’s contention that he had not fully understood his obligations and that he had believed that the very brief materials he had forwarded to the Commission were sufficient to comply with the Commission’s directions. Noting that Mr Hoosen was unrepresented, I declined to dismiss his application. I directed Mr Hoosen to file his outline of argument and statements of evidence by midnight on 14 May 2021 and allowed the company a further day to file its materials. On 14 May 2021, a solicitor, Ms Symes, advised the Commission that she was acting for Mr Hoosen, and on 15 May 2021 she filed materials on his behalf, one day late. At 3.27pm on Friday 21 May 2021, Ms Symes sent to my chambers a F52 application seeking an order for production of a wide range of documents. At 5.00pm I advised the parties, through an email sent from my associate, that I declined to make the order in the form sought and identified a number of concerns about the form and scope of the draft order. No further or amended application for the production of documents was made. At the commencement of the hearing on 24 May 2021, Mr Hoosen stated that Ms Symes no longer acted for him and that he did not wish to rely on an additional submission that had been filed by Ms Symes on his behalf that morning.

The evidence

[4] The factual background to this matter is as follows. ISI provides computer mainframe services and support to private and public clients in Australia. Commencing in 2008, ISI entered into a series of contracts with BMCS, pursuant to which BMCS would provide consulting services to ISI by undertaking work for ISI’s clients. The most recent contract between the companies commenced on 1 October 2020 and had an end date of 31 March 2021. It provided that BMCS would provide to ISI the services set out in schedule 3 of the contract, which included various data management, software availability, documentation and reporting services. Item 6 of schedule 1 of the contract provided that ISI would pay BMCS an hourly fee of $92.50 (exclusive of GST – see clause 4.5), and a monthly ‘on call allowance’ of $1075. Item 7 of schedule 1 stated that Mr Hoosen was to be the nominated representative of BMCS who would provide the services to ISI. Clause 4.4 required BMCS to submit invoices to ISI by the last day of each month, together with time sheets in respect of the services that had been provided each week. Clause 5.1 stated that the relationship between the companies was one of principal and independent contractor. Clause 10.1 provided that ISI could terminate the contract immediately by giving written notice if it no longer required BMCS to perform the services for any reason. The contract was signed by Mr Hoosen as the authorised officer of BMCS. As contemplated by the contract, Mr Hoosen signed a deed poll in which among other things he acknowledged that he was an employee of BMCS.

[5] Mr Hoosen performed the work contemplated by the contract. The work was largely undertaken online. From 2016, Mr Hoosen performed the work from his home in Rowville, Victoria. Mr Hoosen submitted invoices to ISI on behalf of BMCS. Several invoices were tendered in evidence by ISI. They are made in the name of BMCS and cite its ACN. They refer to the services provided in the given weeks. They identify the total fee payable for the month, and the applicable GST. The invoices identify the address of BMCS as 4/960 Whitehorse Road, Box Hill, Victoria.

[6] Mr Steven McKay, the general manager of finance and operations for the ISI group of companies, gave evidence that ISI engages a number of contractor entities in a similar manner to its previous engagement of BMCS. He said that ISI does not guarantee any amount of work for the contractors, that they are treated as autonomous entities and that they perform their obligations without significant day to day management. He said that oversight by ISI is only necessary to ensure that the contractor is meeting the service levels set by ISI’s clients, and that ISI does not prescribe exactly how the contractor must go about performing the service.

[7] Mr Michael Utting, ISI’s technical services manager, gave evidence that Mr Hoosen was able to perform his work at any time that suited BMCS. He said that ISI did not seek to direct when he or BMCS performed the services, so long as the client’s requirements were being met. Mr Hoosen, as BMCS’s representative, was expected to be on call and available for the client in order to rectify urgent problems at certain times, and from 2018 BMCS was paid a monthly allowance for providing 24-hour on call availability. Mr Utting said that ISI did not guarantee any minimum work volumes for BMCS or Mr Hoosen, but that a large amount of work had in fact been available. Mr Utting said that BMCS issued ISI with regular invoices, and that on average it provided 38 to 40 hours of service per week. He said that Mr Hoosen worked autonomously, exercising his own skill and judgement in providing the services.

[8] From around 2014, the services provided by BMCS were directed to a single major client of ISI, namely GPC Repco (GPC). Mr McKay said that, commencing in August 2020, representatives of GPC, including its technical manager, regularly raised with ISI concerns about the poor quality of Mr Hoosen’s work. On 2 January 2021, ISI received a letter from a solicitor acting for Mr Hoosen, Mr Amirbeaggi, alleging that Mr Hoosen was an employee of ISI and that he had been subjected to bullying by the technical manager of GPC, which allegedly included repeated rude and offensive behaviour. The letter stated that if the conduct did not stop, Mr Hoosen would be forced to resign from his employment with ISI, and that this would constitute a constructive dismissal. On 5 January 2021, Mr Amirbeaggi sent Mr McKay an email stating that Mr Hoosen had told him that he had since been ‘treated with more care / respect’ by the GPC manager and Mr Utting, and that he would advise Mr Hoosen to ‘continue on with the expectation that you have taken steps to address the issue’.

[9] Mr McKay said that ISI continued to receive complaints from GPC’s technical manager about the quality of Mr Hoosen’s work. On 9 February 2021, Mr McKay received an email from GPC’s head of mainframe operations documenting GPC’s concerns about Mr Hoosen, including that he had failed to produce or keep up to date task management spreadsheets; that many tasks were not done on time and progress reports were not provided; and that mainframe incidents were not treated with the required urgency. The letter stated that it was only a matter of time before GPC experienced a ‘critical outage as a result of these lapses.’

[10] Mr McKay then conferred with Mr Utting, and instructed him to arrange for Mr Wayne Bickerdike, a contractor, to be available to work on the GPC account. Mr Utting did so. On 16 February 2021, Mr Utting advised Mr Hoosen that Mr Bickerdike would be working on the account. Mr Hoosen replied that his doctor had referred him to a specialist, and that his health had ‘suddenly worsened.’ On 17 February, Mr Utting sent an email to Mr Hoosen stating that he would like Mr Hoosen to take time off for the remainder of February to rest and address his health issues, and that to cover Mr Hoosen’s absence, Mr Bickerdike would be online to ensure that ISI could meet its obligations to GPC. Mr Hoosen replied that he would continue to be available to work online and that, in accordance with his doctor’s advice, Mr Hoosen would be the one ‘best suited to decide when and how much time I will take off from work’. That evening, Mr McKay instructed Mr Utting to suspend Mr Hoosen’s access to ISI’s systems. In his evidence, Mr McKay explained that in his view, a potentially unwell man who had refused to take rest, and who had had difficulties with the client, should not have access to the client’s network. During his oral evidence, Mr Hoosen agreed that it was prudent that he not have access to GPC’s mainframe at this time.

[11] On 19 February 2021, Mr McKay sent Mr Hoosen a letter by express post to BMCS’s address in Box Hill. It was addressed to Mr Hoosen in his capacity as a director and representative of BMCS. The letter stated that, as Mr Hoosen was aware, the client had been dissatisfied with his service, and that following his refusal to take some rest, ISI had suspended his access to all systems. Mr McKay said that he would be in contact with the client and that he would revert to Mr Hoosen as soon as possible. Mr Bickerdike began providing service to GPC on 19 February 2021. Mr McKay said that on 26 February 2021 he received a message from GPC’s head of mainframe operations stating that GPC was satisfied with Mr Bickerdike’s work and saw ‘no need to continue with the services of the BMCS contractor.’

[12] On 1 March 2021, Mr McKay wrote to Mr Hoosen and stated that, having considered the latest advice from its client and the ISI delivery team, the company had decided that it henceforth no longer required BMCS or its nominee to perform services under the contract, and that it was giving written notice of the termination of BMCS’s engagement with ISI. The letter stated that despite this, a final invoice would be paid in respect of the period ending 31 March 2021. The letter was sent by express post to the business address of BMCS in Box Hill. Mr McKay submitted in evidence a confirmation from Australia Post that the letter was delivered at 14.37 on 3 March 2021.

[13] Mr Hoosen gave evidence that he saw the termination letter only on 4 March 2021, following a conversation he had with Mr McKay. I accept this. Mr Hoosen also said that correspondence from the company was always sent to his home address. I accept that it was sometimes sent to his home address, however I find that it was also sometimes sent to the Box Hill address. Mr Hoosen said that he had never provided ISI with BMCS’s Box Hill address. I reject this evidence. Clearly, Mr Hoosen had been submitting invoices to the company that identified the Box Hill address. His insistence during the hearing that he could not possibly have sent ISI the invoices bearing the Box Hill address defied the obvious. It was directly contradicted not only by the existence of the invoices (it is implausible that these are forgeries), but also by an email, tendered in evidence by ISI as a business record, that was sent by Mr Hoosen on 14 February 2021 to Mr Utting attaching an invoice bearing the Box Hill address. What is more, an ASIC search reveals that the Box Hill address is the registered address of BMCS. In addition, I would note that Mr McKay’s letter of 19 February 2021 was sent by express post to the Box Hill address, and that Mr Hoosen does not appear to have raised any complaint about this.

[14] Mr Hoosen’s evidence was that he had commenced working for ISI as a computer specialist at its St Kilda Road office in Melbourne. He said that he had heard, by word of mouth, that there was a full time position at the company, and that on his first day, Mr Utting confirmed that this was the case. Mr Hoosen said that Mr Utting told him that there was full time work available but that it would be better for him to do the work through a company because this would be more favourable to him from a tax perspective. When Mr Hoosen asked Mr Utting in cross examination whether he remembered this, Mr Utting firmly and sternly said ‘no’. His reaction was one of genuine incredulity that the proposition was being put. Mr Utting also said that, although he was present when Mr Hoosen first started performing work at ISI, he was not the person responsible for contracting workers. Mr Utting gave evidence of his involvement in the negotiation and finalisation of the series of contracts between ISI and BMCS from around 2011. I accept Mr Utting’s evidence. I do not accept that Mr Utting sought to persuade Mr Hoosen to provide services to ISI through a company. Mr Utting has been the technical services manager at ISI since he commenced employment with ISI in 2003. I find it improbable that he would offer advice or encouragement to Mr Hoosen on matters that were not within his area of responsibility. I would note that, even if Mr Hoosen’s account of his initial dealings with Mr Utting were correct, it would suggest that Mr Hoosen was given a choice as to the mode of his engagement with ISI and agreed to use a contracting structure.

[15] Mr Hoosen stated that throughout his time at ISI he had weekly teleconference meetings with ISI’s clients to discuss work and projects, together with other employees of ISI. He said that ISI provided him with certain equipment, including a laptop and a dongle. He also said that during the stage 4 Coronavirus lockdown in Victoria in 2020, Mr McKay provided him with a ‘Permitted Worker Permit’, which identified him as an employee of ISI and was signed by Mr McKay as the employer. I return to some of these matters further below.

[16] Mr Hoosen said that ISI had previously been a good place to work, but that recently he had had problems with GPC’s technical manager, who he said did not like Indian people, and had previously referred to India in derogatory terms. Mr Hoosen said that it appeared to him that the technical manager did not like him, and that this was ‘possibly because of my heritage, I could not say.’ Mr Hoosen said that in August 2020 the technical manager had told him a story about one of his direct reports whom he had had to discipline, and that he mentioned that the employee was Indian. Mr Hoosen said that he was very upset by the fact that the manager had referred to the person’s ethnic background. Mr Hoosen also said that he had had other difficulties with the manager and that he felt bullied at work, so in January 2021 he instructed Mr Amirbeaggi to write to the company about this. Mr Hoosen also gave evidence that Mr Utting had previously worked with the GPC technical manager and suggested that Mr Utting was involved in his alleged mistreatment by the GPC technical manager.

[17] I find that there is an insufficient evidentiary basis to conclude that the GPC technical manager subjected Mr Hoosen to any mistreatment. I note in particular that Mr Hoosen was uncertain of whether the manager disliked him and if so, what the cause of that might have been. On the other hand, it is clear that GPC had concerns about the quality of Mr Hoosen’s work, concerns that were shared by GPC’s head of mainframe, to whom the technical manager reported. Mr Amirbeaggi’s letter of 2 January 2021 did not mentioned any racially laden comments. And his subsequent message to Mr McKay suggested that any interpersonal issues had been addressed. I consider that Mr Hoosen’s broader allegations of bullying and harassment are simply not detailed enough to be accepted. I find them to be unsubstantiated.

[18] Mr Hoosen gave evidence that he believed that ISI engaged Mr Bickerdike to work on the GPC account to undermine his role. He said that by December 2020 he was experiencing severe anxiety, which he said had been caused by bullying and harassment, and that his doctor had diagnosed him with anxiety and depression. Mr Hoosen produced to the Commission a medical certificate dated 1 March 2021 stating that he had attended a clinic ‘in relation to his continued work-related stress’, as well as an undated certificate recording a diagnosis of anxiety and depression. I accept that Mr Hoosen was unwell. But I do not accept that there was a plan by ISI to undermine him in some way. I accept the evidence of Mr McKay that he was concerned that an important client was not happy with the service being provided by Mr Hoosen. I find that Mr McKay’s decision to terminate ISI’s contract with BMCS was taken in order to protect ISI’s business, and the business of its client.

Was Mr Hoosen an employee of ISI?

[19] Mr Hoosen contended that he was an employee of ISI, and not an independent contractor providing a service to that company. However, the central question is not whether Mr Hoosen was an employee or a contractor, but rather whose employee he was.

[20] The contractual relationships established by the various parties are clear. ISI entered into a series of contracts with BMCS for the provision of consulting services. Mr Hoosen was employed by BMCS to deliver those services to ISI. There does not appear to have been a written contract of employment between BMCS and Mr Hoosen, but that is very common when a person is employed by their own company and draws a salary from the company’s income. In such cases there is an implied contract of employment. BMCS acknowledged the existence of this contract of employment in its commercial contract with ISI. Mr Hoosen acknowledged its existence to ISI in the deed poll. Importantly, he also acknowledged its existence to the ATO.

[21] Mr Hoosen’s personal tax returns were produced pursuant to an order of the Commission. They disclosed income earned by Mr Hoosen in the form of salary or wages received from BMCS. There is no indication of any salary or wages, or other income, received by Mr Hoosen from ISI. Mr Hoosen’s tax returns also show that he earned rental income in respect of his home in Rowville, and that he claimed deductions in respect of this property. The only plausible explanation is that Mr Hoosen had granted BMCS a lease of some or all of his property, which BMCS used as business premises from which Mr Hoosen performed work on BMCS’s behalf. Mr Hoosen offered no other explanation. 

[22] The payment and other practical arrangements between the various legal persons reflected the contractual arrangements. Mr Hoosen, on behalf of BMCS, sent invoices for services rendered to ISI. ISI paid the invoiced amounts into BMCS’s bank account, which was specified on the invoice, together with the applicable GST. It is not in dispute that BMCS was registered for GST, charged GST on its invoices to ISI, and prepared quarterly ‘BAS’ statements. It is clear that Mr Hoosen has been running a small business. An ASIC search confirms that he is the sole director and shareholder of BMCS. This was a genuine enterprise servicing a major client. It was no empty shell.

[23] Mr Hoosen contended that the full-time nature of his work for ISI demonstrated that he had been its employee. He did indeed work full-time, but for his own company. Mr Hoosen pointed to the long period for which he had worked for ISI as proof of his status as an employee of ISI. But over this period, Mr Hoosen was working for BMCS, providing a service to ISI. There is nothing unusual about a long-standing commercial relationship between two companies for the provision of consulting or other services. I note that BMCS had no guarantee of any particular level of work, and that Mr Hoosen could work at times of his choosing, save that he had agreed to be available on call. Mr Hoosen worked autonomously, with minimal supervision. Nothing in these arrangements points to a conclusion that Mr Hoosen was an employee of ISI.

[24] Mr Hoosen contended that ISI’s provision of a laptop and certain other equipment was a factor indicative of an employment relationship. But Mr McKay explained that the laptop was provided for the purpose of enabling BMCS’s access to its systems and those of its clients. In my view, what in fact occurred was that ISI granted BMCS a rent-free lease of certain equipment which was then placed at Mr Hoosen’s disposal. I note that the contract between ISI and BMCS required BMCS to return all property belonging to ISI upon the contract’s termination (clause 10.4).

[25] Mr Hoosen contended that ‘by its conduct’, ISI did not allow him to contract with other parties, and that he worked ‘wholly and solely’ on a permanent basis with ISI. What he appears to mean is that he was so busy providing services to ISI that he had no time to work for others. But that simply means that ISI gave BMCS a lot of work, and Mr Hoosen was happy to accept it. Neither BMCS nor Mr Hoosen were prevented from providing services to other persons. There was no such provision in the contract. Further, the contract provided for the possibility of BMCS utilising a person or entity other than the nominated representative to perform the services for ISI (see clause 2.1), however BMCS did not seek to utilise this provision.

[26] Mr Hoosen contended that the ‘accepted test’ as to whether a person is an employee is whether 80% of their services are provided to the same principal, and the gross income derived from those services is at least 80% of their total gross income during the relevant period. This is wrong. These matters may be relevant to the taxation treatment of a person’s earnings. But they do not determine whether a person is an employee at common law. In any event, as I have said earlier, there is no question in the present matter that Mr Hoosen was an employee. What is in contest is the question of whether he was an employee of his own company or ISI.

[27] Then there is the question of the ‘Permitted Worker Permit’ issued to Mr Hoosen during the stage 4 COVID-19 lockdown that occurred in Victoria from August to October 2020, which Mr Hoosen cited as evidence of his status as an employee of ISI. Mr McKay explained that, although he signed a batch of permits, he was not responsible for preparing them, and that he had asked the responsible employee to ensure that they were only issued to persons who needed them. In short, he signed them, but did not check that they were correct, because this was an administrative task assigned to another person. Pursuant to the directions issued by the Victorian Public Health Commander under the emergency powers arising from the state of emergency declared in 2020, employers were required to issue permits to relevant employees. Permits were not issuable to contractors. ISI purported to issue Mr Hoosen a permit. However, I do not regard Mr McKay’s signature on the permit as evidence of a belief that Mr Hoosen was an employee of ISI. Plainly Mr McKay did not think that. He signed the permit in error.

[28] In my opinion, there was no contractual relationship between Mr Hoosen and ISI. In particular, the evidence does not establish any intention on the part of ISI and Mr Hoosen to create legal relations. In this regard, what is relevant is the parties’ mutual intention, which is to be assessed objectively and, not, as the High Court said in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at [25], ‘from the identification of any uncommunicated subjective reservation or intention that either may harbour’ (at [25]). The High Court went on to say:

“Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those actions and statements happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.”

[29] There is simply no evidence of any mutual intention of ISI and Mr Hoosen to create a contract of employment, or any other contract. Prior to January 2021 there was not even any indication that Mr Hoosen even believed that he was an employee of ISI.

[30] Mr Hoosen was not an employee of ISI. He was an employee of BMCS. His company contracted with ISI. He worked for his company providing a service to its client. These were the arrangements that the various parties intended to establish and did establish. They are historical facts. They cannot be undone by revisionist contentions that the performance of work by an individual over time can bring about some form of contractual metamorphosis that is independent of the mutual intention of the parties.

[31] The company’s first jurisdictional objection is upheld, and Mr Hoosen’s unfair dismissal application must be dismissed. However, I will proceed to determine the second and third objections.

The high income threshold and award coverage

[32] If I had concluded that Mr Hoosen had been an employee of ISI, I would nevertheless have determined that he was not a person protected from unfair dismissal, because his annual rate of remuneration exceeded the high income threshold and he was not covered by a modern award or enterprise agreement. Section 382 of the Act provides:

“A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of minimum employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[33] Mr Hoosen said in his outline of argument that his annual rate of earnings was the amount of taxable income shown on his personal tax return and that this was an amount of $134,289. I reject this contention. First, s 382(iii) is concerned with the annual rate of earnings, at the time of dismissal, not the amount of earnings earned in the preceding year. The reference to a rate of earnings in this provision stands in contrast to the use in s 392 of the concept of earnings during the 26 week period preceding dismissal. It is also clear that the relevant time at which the rate of earnings must be ascertained is the time of the employee’s dismissal (see Zappia v Universal Music Australia Pty Limited [2012] FWAFB 6108 at [9]).

[34] Secondly, if Mr Hoosen were to be regarded as having been an employee of ISI, I consider that his annual rate of earnings would be ascertained by reference to the contractual payments made by ISI to BMCS. These would be the earnings notionally paid by ISI to Mr Hoosen as wages. There would be no logical basis to consider only the employee salary that Mr Hoosen chose to pay himself from the earnings of his company. Section 332 defines ‘earnings’ as including an employee’s wages and ‘amounts applied or dealt with in any way on the employee’s behalf or as the employee directs’. In my view, if Mr Hoosen were to be regarded as having been ISI’s employee, then all of the payments ISI made to BMCS fell within this definition, save for the GST that was charged.

[35] Thirdly, at the time of Mr Hoosen’s alleged dismissal in March 2021, the contract between the companies stipulated an hourly fee of $92.50, and a monthly retainer of $1075. It was not in dispute that Mr Hoosen usually worked 38 hours per week. I consider that it is relevant to take this fact into account in determining the annual rate of earnings at the time of the notional dismissal. The sum of $92.50 was not a theoretical rate. It was an actual rate. Mr Hoosen’s annual rate of earnings was the hourly rate, expressed as a weekly amount based on the usual number of hours ($92.50 x 38 = $182,780), plus the monthly on call allowance ($1075 x 12 = 12,900), which equals $195,680 per annum. This far exceeds the high income threshold that applied at the time of the alleged dismissal, which was $153,600.

[36] ISI is not party to any enterprise agreement, and Mr Hoosen did not identify any modern award that covered him in his alleged employment with ISI. However, ISI quite properly raised for the Commission’s consideration the question of whether Mr Hoosen might have been covered by the Professional Employees Award 2020 (Award), which covers ‘employers throughout Australia principally engaged in the information technology industry … and their employees who are covered by the classifications in Schedule A—Classification Structure and Definitions’ (clause 4.1(b)). ISI conceded that it operates in the information technology industry and that Mr Hoosen’s services were broadly in the nature of services performed in that industry. The question then is whether the work undertaken by Mr Hoosen fell within one of the classifications in Schedule A, noting the relevant definitions in clause 2 of the Award.

[37] There is no evidence that Mr Hoosen has a university degree with a science or information technology major, so as to bring him within the definition of an ‘experienced information technology employee’, ‘graduate information technology employee’ or ‘professional information technology employee’ in clause 2.3. In order for Mr Hoosen to fall within these definitions, he would therefore need to have ‘sufficient qualifications and experience’ to be a certified professional of the Australian Computer Society. There is no evidence that Mr Hoosen satisfied these requirements. In any event, it would be necessary to consider whether the work performed by Mr Hoosen, considered as a whole, fell within one of the four classifications in the Award. I do not consider that the range of consulting services required by the contract align with any of these classifications. Furthermore, I note that the expected minimum skills required of BMCS and the nominee by the commercial contract are set out in schedule 3, and that these include ‘demonstrated project management and leadership skills’. This is an important qualitative element of the work that Mr Hoosen and his company were required to perform. It places the work undertaken by Mr Hoosen above the Level 4 classification in the Award. In my opinion, were Mr Hoosen to be regarded as having been ISI’s employee, his employment would not have been covered by the Award. I am not aware of any other modern award that could be said to have covered Mr Hoosen.

[38] Mr Hoosen was not a person protected from unfair dismissal, and the Commission has no jurisdiction to order an unfair dismissal remedy in his favour (see s 390(1)(a)).

The application is out of time

[39] Finally, I consider that Mr Hoosen’s unfair dismissal application was lodged out of time, and that he would therefore require an extension of time in order for his application to proceed.

[40] The letter of 1 March 2021 which terminated the contract between ISI and BMCS, and notionally the employment of Mr Hoosen, purported to have immediate effect. However, in my view any dismissal of Mr Hoosen can only have taken effect when notice of the dismissal was given to him. In this regard, s 117 of the Act states that an employer must not terminate an employee’s employment unless the employer ‘has given the employee written notice’. The meaning of this expression is affected by s 28A of the Acts Interpretation Act 1901 (Cth) (as in force on 25 June 2009 – see s 40A). Section 28A provides that, where an Act requires or permits a document to be served on or given to a natural person, this may be done by sending it by pre-paid post to the address of the place of residence or business of the person (see also s 29). In the present case, Mr Hoosen had a residential address and a business address. The evidence shows that both were used for communications between ISI and BMCS. The residential address of Mr Hoosen was specified in the contracts between the companies. But invoices, as well as some other correspondence, used the registered business address. They were both legitimate addresses at which notice of termination of employment could be given. The termination letter was given to Mr Hoosen on 3 March 2021, because that is the date on which it arrived at his business address by express post. The 21-day period therefore expired at midnight on 24 March 2021. Mr Hoosen lodged his application on 25 March 2021, one day out of time.

[41] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’ (s 394(3)). I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. The requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable if in all the circumstances the Commission considers that it is fair to do so.

[42] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position.

[43] The Act does not specify what reasons for delay tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Mr Hoosen did not advance any reason for the delay in lodging his application, however I infer that he contends that he was unaware that there was any delay. However, a person’s unawareness of the relevant legal requirements is not an acceptable or reasonable explanation for the delay. Mr Hoosen had been unwell, but he did not produce evidence to suggest that this was a reason for the delay. I do not consider that Mr Hoosen has provided an acceptable or reasonable explanation for the delay. This weighs against an extension of time.

[44] An important consideration in this matter is that Mr Hoosen did not become aware of the dismissal until the day after it took effect. However, the 21-day period runs from the time when the dismissal took effect, not from the time the employee became aware of the dismissal. One does not automatically discount the time that elapsed before the person became aware of the dismissal. This matter is only one of the considerations that the Commission must take into account in deciding whether there are exceptional circumstances. In the present case, Mr Hoosen had 20 of the 21 days to lodge his application. I do not regard this as an exceptional circumstance. No reason has been presented as to why Mr Hoosen could not have lodged his application during these 20 days. He waited until what he believed to be the last of the 21 days to file his application. Mr Hoosen said in his evidence that on or about 13 March 2021 he consulted a lawyer about his situation, but he did not ask the lawyer to file the application on his behalf. Mr Hoosen does not contend that there was any error on the part of his representative that would constitute an exceptional circumstance. The fact that Mr Hoosen was not aware of his dismissal on the first day of the 21-day period weighs in favour of an extension of time, but only moderately so.

[45] The following two factors are neutral considerations: first, I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Hoosen and other persons; and secondly, ISI has not in my view established that any real prejudice would accrue to it if an extension of time were granted. To the extent that the latter could be considered to weigh in favour of an extension, I accord it minimal weight. I accept that Mr Hoosen took some action to dispute the dismissal by objecting to it and consulting a lawyer. This weighs modestly in favour of an extension of time.

[46] In considering the merits of the application, I put aside the jurisdictional matters that I have determined above. In my view, ISI has established a strong case that any dismissal of Mr Hoosen was for a valid reason, namely that GPC was dissatisfied with Mr Hoosen’s service and wished to be provided with the services of another person. There is no evidence of any other work that Mr Hoosen could have performed for ISI. Mr Hoosen was not given an opportunity to respond to the reason for dismissal, however this consideration appears to be outweighed by the valid reason. As to any other relevant matters, I note that Mr Hoosen had worked in association with ISI for over 12 years, and that until recently there appear to have been no concerns about his performance. I note that Mr Hoosen had been unwell. And I note my earlier finding that his allegations of mistreatment by the company and its client are unsubstantiated. I consider that the merits of the application are weak. This weighs against an extension of time.

[47] I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Accordingly, there would be no basis for me to extend time, and I would decline to do so. For this reason, even if Mr Hoosen had been dismissed from employment with ISI, and had been protected from unfair dismissal, his unfair dismissal application would nevertheless have to be dismissed.

Conclusion

[48] Mr Hoosen was not employed by ISI. Even if he had been so employed, he was not a person protected from unfair dismissal. Mr Hoosen’s application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

E. Hoosen for himself Mr Hoosen
J. Tracey of counsel for ISI Managed Services Pty Ltd

Hearing details:

2021
Melbourne
24 May

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