1
Fair Work Act 2009
s.394—Unfair dismissal
Evan McNeilly
v
ACE Insurance Limited T/A Combined Insurance
(U2014/11674)
SENIOR DEPUTY PRESIDENT
O’CALLAGHAN ADELAIDE, 30 SEPTEMBER 2014
Application for relief from unfair dismissal - extension of time not granted.
[1] This decision deals with issues associated with an extension of time for the lodgement
of Mr McNeilly's unfair dismissal application. That application was lodged on 14 August
2014 pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr McNeilly sought relief in
relation to the termination of his alleged employment with Ace Insurance Limited (Ace).
[2] In his application, Mr McNeilly advised that while his dismissal took effect on 6 July
2014, he only became aware of that dismissal on 24 July 2014. Mr McNeilly attached the
following relevant advice to his application:
“My name is Evan McNeilly, This claim for unfair dismissal is an unusual case and I
hope you take the time to review the material. In October 2006 I joined Combined
Insurance as a subcontractor which was owned by ANON Insurance. In 2008 ANON
insurance sold Combined Insurance to ACE insurance. During the process a Court case
was in action relating to whether or not we were subcontractors or employees. In
August 2013 the High Court of Australia deemed as employees.
On the 30th of June 2013 I was issued a termination letter stating clause 15a in my
contract which was posted to me that I never received. I only found out on the 24th of
July 2014 that I had been terminated. Between the 30th of June and the 24th of July I
was still visiting and servicing existing clients and new ones.
I believe that I have been unfairly dismissed and this is not a case of genuine
redundancy as the position I held is still active except they are now paying all
company entitlements of an employee.”1
[3] The application was referred to me for consideration. On 16 August 2014 my
Associate advised the respondent of the application and advised both parties that it appeared
that the application had been lodged outside of the legislated 21 day time frame. The parties
were provided with substantial background information relative to the application and
extension of time issue. This advice informed the parties that the extension of time issue
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DECISION
E AUSTRALIA FairWork Commission
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would be considered through a telephone conference on 8 September 2014. Mr McNeilly was
required to provide a witness statement and a copy of any document relied upon, by 1
September 2014.
[4] The Employer’s Response (Form F3) to the application asserted that Mr McNeilly was
not an employee but was an independent contractor and that the termination of that
contractual arrangement was advised to him by various communications, including on 27
June 2014. Further, the Form F3 asserted that Mr McNeilly was not dismissed. Finally, the
respondent objected to the application on the basis that it was lodged outside of the legislative
time limit.
[5] Mr McNeilly provided material to the Fair Work Commission (FWC) and to Ace. This
material confirmed his position that he was unaware of the termination of his employment
until 24 July 2014. He also provided a copy of correspondence from a client with whom he
had dealt as a representative of Ace in late June and early July 2014.
[6] Just prior to the conference on 8 September 2014 Ace, through its representative, Mr
McDonald, of counsel, provided a significant amount of material and statements relating to
both the relationship Mr McNeilly had with Ace and its position in relation to when he
became aware of the cessation of the contract he had with Ace. Neither I, nor Mr McNeilly
had the opportunity to properly consider this information.
[7] Mr McNeilly and Mr McDonald participated in the conference on 8 September 2014.
A sound file record of this conference was kept. Mr McDonald appeared pursuant to a grant
of permission made under s.596(2)(a) of the FW Act. At this conference Mr McDonald
confirmed that Ace initially only sought to dispute the extension of time issue but that it
reserved its right to challenge Mr McNeilly's employment standing.
[8] I advised the parties that, given the complexity of the issue, the material which had
only just been filed and the number of witnesses now involved, the matter would be
considered at a hearing on 17 September 2014.
[9] Prior to this hearing the parties jointly requested access to conciliation assistance. This
was arranged through another Member of the FWC. No agreement was reached.
[10] At the hearing Mr McNeilly gave evidence that he attended information sessions about
changes to the Ace operational structure in May and June 2014. He sought an ongoing
engagement with Ace directly as a senior agent in the new structure and had an interview to
this effect. When he attended the information session on 27 June 2014 he was aware that these
changes were to come into effect from that date but his evidence was that he was advised that
this date did not apply to him. Mr McNeilly asserted that he was not advised of the cessation
of his contractual arrangement with Ace until 24 July 2014 when he attempted to finalise an
insurance contract. I have considered all of the evidence given by Mr McNeilly but did not
find him to be a particularly credible witness.
[11] I have noted correspondence from a Ms Rademacher who advised that Mr McNeilly
arranged an insurance contract with her on 29 July 2014.
[12] Ms Reig is the Divisional Administrator of Combined Insurance Australia which is a
business division of Ace. Amongst other matters, her evidence went to her participation in a
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briefing session in Adelaide on 22 May 2014 and the extent to which this session confirmed
the termination of the existing insurance sales arrangements with effect from 27 June 2014.
[13] Mr Sangwan is an Administrative Assistant with Combined Insurance Australia.
Again, amongst other matters, his evidence went to his involvement and role in the meeting
on 27 June 2014. He specifically recalled an exchange he had with Mr McNeilly as he was
collecting signed termination of employment letters. His evidence was that:
“Prior to this meeting I received a copy of all termination letters for Authorised
Representatives working in South Australia. My role was to collect from all the
Authorised Representatives present at the training meeting a signed termination letter
(there was a designated area at the bottom of the termination letter for the authorised
Representative to sign).
I recall that I approached Evan McNeilly in the presence of Prashant Sarin to collect
the signed termination letter from Evan. Prashant was one of the two designed PAs for
South Australia. In Evan’s presence I said words to the effect to Prashant: “Can I have
the signed termination letter from Evan?” I believed that Evan was intending to work
for Prashant as a sub-authorised representative, hence I directed by query to Prashant
(in Evan’s presence).
Evan responded to me words to the effect: “I am not going to sign the termination
letter. I want my lawyer to review it first before deciding what I am going to do”.
I was surprised to hear this from Evan. No other Authorised Representative refused to
provide a signed termination letter during the training meeting.”2
[14] Mr Sangwan did not recall any advice being given at this meeting to the effect that
people such as Mr McNeilly should keep operating as they had in the past, after 27 June 2014
and clearly understood that persons not covered within the new structure after that date would
not then be part of Ace.
[15] In reaching a conclusion about this matter I have also taken into account the additional
material provided to me.
[16] The information provided to the parties included a copy of s.394 and advised of the
factors I am required to take into account in considering this matter.
[17] Section 394 states:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
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Note 3: Part 6-1 may prevent an application being made under this Part in relation to a
dismissal if an application or complaint has been made in relation to the dismissal
other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person
under subsection (1) if the FWC is satisfied that there are exceptional circumstances,
taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect;
and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[18] The initial issue goes to when the termination of Mr McNeilly's employment took
effect. In this respect I have concluded that this occurred on 27 June 2014. That date is
consistent with the restructuring advice provided in the May and June presentations. The
material before me confirms that there was clear advice provided to the Ace insurance staff
that the only arrangements under which employees or agents would operate in South Australia
after 27 June 2014 were those detailed in the presentations. Even though he has not provided
physical evidence of this, Mr McNeilly may well have sought direct employment with Ace
and may well have had an interview to this effect. However, I am not satisfied that he was
advised that his previous status was preserved pending the determination of that application
process. In this regard I have preferred the evidence of Mr Sangwan to the effect that he did
not recall advice being provided to Mr McNeilly at the 27 June 2014 meeting that he should
continue to operate in the previous manner. Advice of that nature would be inconsistent with
mandatory changes to stationary, to the handing in of laptop computers and indeed, to Mr
McNeilly's attendance at that meeting with the Agent with whom he later entered into a
relationship. Mr Sangwan’s evidence is supported by that of Ms Reig.3 In reaching this
conclusion I have also taken into account the material that indicates that Mr McNeilly stopped
his normal insurance writing arrangements for Ace Insurance after 27 June 2014. Mr
McNeilly had the opportunity to establish to me that he continued to operate normally after 27
June 2014. His provision of advice of only one insurance sale does little to support his
position that he did operate in a normal fashion and Ace contended that his monthly sales
average of $8356 stopped after June 2014. The absence of evidence from Mr McNeilly to
establish an alternative position lends credence to the Ace contentions in this respect. Mr
McNeilly advice at the 27 June meeting that he was seeking legal advice about the
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termination letter indicates that he had to be aware of that letter and the termination
arrangements in order to be able to respond in that manner. Having concluded that the
termination of whatever arrangement took effect on 27 June 2014, it follows that the
application was made outside of the specified 21 day time limit. The application was lodged
some 27 days outside of the 21 day time limit and can only be pursued if an extension of time
is granted pursuant to s.394(3). I have considered whether Mr McNeilly's circumstances can
be regarded as exceptional for the purposes of this subsection.
[19] Mr McNeilly asserts that the delay was a consequence of his late receipt of a formal
termination letter. He asserts that this was not received until 24 July 2014. That may well
have been the case but, for the reasons I have outlined above, I believe that Mr McNeilly was
aware, before 27 June 2014, that the previous arrangement ended on that date. Accordingly, I
do not consider that the delay in his receipt of the formal termination advice represents an
acceptable reason for the delay, or an element of an exceptional circumstance. Mr McNeilly
also asserts that he was in the process of seeking ongoing employment or an advanced agency
role with Ace. Again, this may have been the case but I am not satisfied that he has
established that this prolonged the previous arrangement. Mr McNeilly chose not to call
evidence to support his belated recollection that he was told, at the meeting on 27 June 2014,
to continue his current practices. Mr Sangwan did not recall that advice and it seems to me to
be inconsistent with the substantial steps taken by Ace to change its stationary, operating
systems and information technology arrangements with effect from 27 June 2014. In
summary, I am not satisfied that Mr McNeilly has established to me a satisfactory reason for
the substantial delay.
[20] I have concluded that Mr McNeilly was made aware of the termination of whatever
contractual arrangement he had with Ace before 27 June 2014 which I have taken as the date
that termination of employment took effect.
[21] It is not clear that Mr McNeilly challenged the termination of his employment other
than by making this application.
[22] I do not consider that the granting of an extension of time would prejudice the
respondent in this matter but this does not represent a basis upon which to found an extension
of time.
[23] In terms of the merits of the application, the information before me does not permit a
conclusion about Mr McNeilly's employment standing or the basis upon which he has made
this application. As a consequence I have regarded the merits of the application as a neutral
factor in relation to the extension of time.
[24] Considerations of fairness relative to persons in similar circumstances to Mr McNeilly
do not support an extension of time.
Conclusion
[25] For the reasons I have set out above, Mr McNeilly's circumstances do not support an
extension of time. Those circumstances cannot be regarded as exceptional for the purposes of
s.394(3). The request for an extension of time is refused and, accordingly, the application is
dismissed. An Order (PR555998) reflecting this decision will be issued.
[2014] FWC 6814
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SENIOR DEPUTY PRESIDENT
Appearances:
E McNeilly on his own behalf.
T McDonald counsel for the respondent.
Hearing Details:
2014.
Adelaide:
September 17.
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR555997
1 Form F2, para 1.4 (cover letter)
2 Exhibit A9, paras 3 - 6
3 Exhibit A7, para 13
THE FAIR WORK AUSTRALIA MMISSION THE SEAA
