Angela Mullins v Harby Hills Pty Ltd T/A D & v Charles

[2015] FWC 4801

[2015] FWC 4801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Mullins
v
Harby Hills Pty Ltd T/A D & V Charles
(U2015/7916)

COMMISSIONER LEE MELBOURNE, 3 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 27 May 2015, Ms Angela Mullins (the Applicant) made an application pursuant to section 394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed in contravention of Part 3-2 of the Act by Harby Hills Pty Ltd T/A D & V Charles (the Respondent).

[2] The application was made outside the statutory time period. The matter was listed before me in Launceston on 8 July 2015. Ms Mullins represented herself at the hearing. Mr D Charles and Ms V Charles appeared for the Respondent. At the conclusion of the hearing, I issued a decision ex tempore. What follows is an edited version of that decision.

[3] The Applicant was dismissed from her employment and alleges that she is an employee of the Respondent. This matter was listed for extension of time hearing only. As such, I simply note at this point that it is in contest that the Applicant was an employee, but for the purposes of this decision I will assume that the Applicant is an employee.  Clearly, if she is not an employee the application has no basis.

[4] Assuming the Applicant is an employee and that she was dismissed, the Applicant submitted and gave evidence that she was dismissed on 17 February 2015.  The Respondent gave evidence at the hearing that she was in fact dismissed on 18 February 2015.  The Applicant was not in a position to contest the date of dismissal.  For the purpose of this decision I have determined that she was dismissed on 18 February 2015.  As she was dismissed on 18 February 2015 the application should have been lodged on 11 March 2015. As the application was not lodged until 27 May it was 11 weeks late.

[5] In this case, it is a matter of determining whether or not I grant an extension of time, as permissible under the Act. When deciding whether or not to extend the time, the Act sets out that I need to consider the matters in section 394(3), which include:

(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

[6] The meaning of exceptional circumstances was considered in Cheyne Leanne Nulty v Blue Star Group Pty Ltd 1.  What are exceptional circumstances?  They are circumstances that are out of the ordinary course, unusual, special or uncommon.  They need not be unique, unprecedented or very rare.  Exceptional circumstances are not regularly, routinely or normally encountered.  Exceptional circumstances may be a single exception or event or a series of events put together are exceptional.  Ignorance of the timeframe for lodgement is not an exceptional circumstance.

(a) Reason for delay

[7] The Applicant made submissions via the document marked in the proceedings as M1, that she had commenced employment with the Respondent as a share farming manager on 1 July 2012 and that she was currently engaged under a share farmer agreement that operated from 1 July 2014 to 30 June 2015 with a 60 cent share of milk solids.

[8] The Applicant asserts that on 17 February (but I have determined that it was 18 February) she was dismissed from her job via a telephone call, that she was not given any notice and that it was instant dismissal.  She was asked to vacate the work house that she had rented from the Employer by no later than 4 March.

[9] The Applicant submits that she completed an online questionnaire on the Fair Work Commission’s website in relation to a contract employee which indicated she was able to lodge a claim for unfair dismissal.  I suspect that questionnaire was actually on the Fair Work Ombudsman’s website, but nothing much turns on that.

[10] Importantly, the Applicant submits that on 26 February 2015, she lodged an unfair dismissal claim with the Fair Work Commission (the Commission) and she assumed that it was lodged because of an automated email received from [email protected], as her application had been received; this in turn meant that she had filed within the 21 day period.

[11] There is, in the evidence, the document that is marked M2 which is a standard acknowledgment of registration from the Commission and acknowledges that the Applicant has been registered on the Commission website as an “e -Filing user”. There is no doubt that the acknowledgment of registration was done on 26 February 2015.  However there is no evidence provided of an actual application being lodged on 26 February.

[12] I have, as I indicated to the Applicant, no record of the lodgement of an application. I have asked Commission staff to conduct a search of the records and there was no evidence of any attempt to lodge an unfair dismissal application by the Applicant.  Indeed, the search revealed that between February 1 to 30 April the only records found were three logins by the Applicant on 24 March, the first at 9.27 am and the others were 10 seconds apart at 10.30 am.  Again, these were logins not the lodgement of materials.

[13] The Applicant further submitted that she had difficulties contacting the Commission, via emails and messages sent from a link on the Commission’s website.  Ultimately, that must have yielded some success because on 4 April 2015, some six weeks after the dismissal, the Applicant was contacted via phone call from a Commission staff member in Victoria.  The Applicant says that that person said that they could not help her as she needed to deal with the Fair Work Commission in Hobart. She was advised at that time about the 21 day time period.

[14] From that point on, her evidence is that she had further difficulties with the lodging of the Form F2 through the computer system, but gave further evidence that she posted the application on 27 March 2015, or sometime around March, the Applicant was vague about what that date was.  In any case, it is clear from the Applicant’s own evidence, that on 4 April 2015, she spoke to Commission staff.  She was advised of the 21 day time period and that the Commission had not received the application. Despite that, there was another significant period which extended through April and almost all of May until the application was ultimately lodged on 27 May,

[15] In terms of the reason for the delay, the Commission has to be satisfied that there is an acceptable reason for the delay.  A Full Bench of the Commission 2 recently confirmed that:

“[a]n application is not lodged unless it is actually received by the Commission and ultimately, it is the responsibility of parties to ensure that their applications are actually received by the Commission within the 21 day time period.” 3

[16] On that basis, while I understand the Applicant’s submission that she thought that the registration receipt email indicated her success in lodging the application, it is clear that it does not.  It merely indicates success in registering as a user, it does not indicate that the application was lodged. If I was to accept that as being an acceptable reason, the Applicant was clearly on notice on 4 April 2015, on her own evidence, that the Commission had not received the material, there was still a significant period of delay. The delay may partly be explained by moving house, although the evidence on that is vague. I am not satisfied that there is any evidence given today that explains even a substantial part of that further delay.

[17] Leaving aside the delay from 25 May to 27 May 2015; 25 May being the date at which it is clear the Applicant spoke to a Commission staff member in Hobart, and was again told her application had not been received, she ultimately successfully filed the application on 27 May. However, for the period from 4 April to 25 May, I am not satisfied that there is an acceptable reason, when there must be.

[18] An employee needs to provide a credible reason for the whole of the period that the application was delayed, not just for part of the period. I am not satisfied that there is that credible reason, for the whole of the period.

[19] I find in the evidence, there was reference to some legal advice that the Applicant obtained, however it has been established that it was obtained in the last week prior to the lodgement of the claim. As a result, prior to this hearing, there is no issue of representative error arising.

[20] Having considered all of the factors in terms of the reason for the delay, I am not satisfied there is an acceptable reason and that weighs against a decision to grant an extension.  However, all the matters need to be considered before a decision is made as to whether or not to grant an extension.

(b) Whether the person first became aware of the dismissal after it had taken effect

[21] The next matter is when the Applicant first became aware of the dismissal after it had taken effect. The only issue that arises is whether or not the dismissal took effect on 17 or 18 February.  To give the Applicant the benefit of the doubt on that point, I have determined that it did take effect on 18 February, making the application slightly less out of time, but only by one day.  In any case, the Applicant was in no doubt that she was dismissed, on her own evidence, on that day, 18 February.  So that is a neutral consideration.

(c) Any action taken by the person to dispute the dismissal

[22] There is no evidence that the Applicant, other than registering her displeasure on the day of the dismissal, took any action to dispute the dismissal beyond her evidence that she tried to lodge an unfair dismissal application at the time that she sought to.  Again, that falls to be a neutral consideration.

(d) Prejudice to the employer (including prejudice caused by the delay)

[23] The onus is on the employer to demonstrate that there is prejudice.  Ms Charles for the Respondent made reference to concerns about damage to the brand as a result of these proceedings.  I am not satisfied that would necessarily follow, nor am I sure it is a consideration in terms of what the prejudice might be.  Presumably, there would only be prejudice arising to the brand if there were damaging findings in terms of further proceedings.  In terms of actual prejudice simply arising from the delay I am not satisfied there is any prejudice to the employer.  This is a long delay, which gives rise to a general presumption of prejudice, but to the extent that there is no evidence produced to suggest prejudice, I will determine to treat it as a neutral consideration.

(e) The merits of the application

[24] I will deal firstly with the threshold issue in this matter, in terms of whether or not the employee is a contractor or, rather in this case, a share farmer. To be clear, a contractual relationship is different to that of an employee/employer relationship.  Obviously, what is put by the Applicant is that she is an employee, and that she has in fact been in an employee/employer relationship.  Of course, if the Applicant is not an employee the application would have no reasonable prospects of success because it would be outside the jurisdiction of the Commission. If the Applicant is an employee, then a case would (subject to any other jurisdictional issue) follow, and there would be a determination one way or the other as to whether or not the dismissal was a harsh, unjust or unreasonable.

[25] In terms of the issue as to the merit of the application, the Applicant in her Form F2 application - and dealing with the issue of contractor/employee - said the following:

“My employment description
was employed on an ABN as dairy sharefarmer/manager agreement contract
However I was treated more as an employee than a contractor
was given instructions and directed and undermined in my decisions
wasn’t informed on other contractors or workers entering the farm or their tasks
I never had to forward invoices as they were done by Harby Hills
deductions taken from my wages.” 4

[26] The Applicant asserts that she has worked for the Respondent for two years and eight months in total.

[27] If it is the case that the Applicant is an employee, she talked about the circumstances around the dismissal and that she was ill for some days prior to 17 February, now held to be 18 February.  She stated that she had worked for seven months with no time off and that her illness led to her sleeping in. The Applicant stated she was bewildered as to why Mr Charles didn’t call her, as her residence was close to the dairy and that their friendship would have allowed him to do so.  The Applicant believes Mr Charles unfairly dismissed her and that he should have given her proper notice to prepare and that the dismissal has had a harsh impact on her financially; with no wages she has had to sell things, loan money, and so on.

[28] As I recall the Applicant’s evidence, on one other occasion where she had overslept, there was a reference to a champagne breakfast on Christmas Day.  Taking into account all those considerations, would be the basis of her claim that she was unfairly dismissed should this matter proceed to full hearing on the merits.

[29] Mr and Ms Charles have given evidence about the share farmer arrangement (the Arrangement).  There is, in the materials, and it was submitted by the Respondent, document M3 which is a dairy share farmer agreement between the Respondent and the Applicant.  There is no doubt that the Arrangement, which was on foot at the time of the purported termination of employment, is set up as such and purports to be an arrangement between Mr and Ms Charles as the farm owners and Ms Mullins as the share farmer.

[30] The Arrangement is extensive and I don’t propose to go through it in detail.  It clearly evidences an intention of the parties to regulate their relationship through contractual means.  It sets out the breakup of costs that would be incurred by each party and sets out the responsibilities of the share farmer and farm owner.

[31] Mr Charles gave evidence that a consultant, Ms Penny Williams, prepared and was the author of the Arrangement.  It is not disputed the arrangement is signed by both Ms Mullins and either Mr or Ms Charles.

[32] I will just refer to a few key elements of the Arrangement.  Clause 5 provides for remuneration for the share farmer, where the share farmer receives 60 cents per kilogram of milk solids produced plus GST sent to the milk factory, is paid on or near the 15th of each month by the farm owner for the previous month’s milk solids production and the farm owner provides a copy of the milk statement, outlining the kilograms MS, (which would be milk solids), produced for the previous month and then makes that payment into the share farmer’s nominated bank account.

[33] The Arrangement sets out the milking cow numbers that the farm owner supplies, the 400 cows to calve during the term of the Arrangement and the milk quality standards that are to be required.  It sets out the share farmer’s responsibilities and the farm owner responsibilities at clause 9 and clause 10.

[34] The share farmer’s responsibilities are a list of tasks and duties that are share farmer’s obligations.  The farm owner’s responsibility is to supply the farm with the cows, pay the accounts, provide a summary of the milk production and quality and to provide the required machinery and irrigation equipment for the daily operation of the dairy farm.

[35] The farm owner decides which milk company the dairy property will supply.  The cost of semen, artificial insemination services and bulls is informed by the farm owner.  There is collaboration between the farm owner and the AI representative over the semen chosen to be used on the cows, suggesting that the share farmer does not have control over that factor.

[36] The share farmer does supply the dairy chemicals to assist with the quality of milk, although it’s suggested that the dairy chemicals be the same ones that the farm owner uses,   milking gloves, filter socks and wet weather gear are also costs borne by the share farmer.

[37] Of interest is that there’s an employment of labour provision at clause 22. The employment of any person can’t occur until the share farmer has notified the farm owner of the person who is to be employed, and the farm owner agrees that this person is fit for the share farmer’s replacement.  Part of the clause allows for the share farmer to employ their own staff, but I note that even on that point the farm owner exercises a level of control as to who would be engaged.

[38] Further, the share farmer is not to engage in outside employment without the written consent of the farm owner, again suggesting a high level of control and more of indicative, in my view, of an employment relationship.

[39] There is an arrangement by which the share farmer can rent a house from the farm owner. The farm owner is responsible for the electricity and so on, which is not remarkable.

[40] At clause 47 there is a provision for the ordering or purchase of products.  Any expense over $500 must have consent from the farm owner before being obtained with the exception of vet supplies.  Receipts of any purchases made have to be given to the farm owner.  Any expenses over a certain amount without the farm owner’s consent are borne by the share farmer.  The share farmer must give receipts to the farm owner for products before purchasing any other products in that month.  Again, tending towards evidence of a level of control by the farm owner over the share farmer.

[41] When one looks at the break down of the Arrangement, there’s a break up of who is responsible for what in terms of income and costs.  The share farmer receives 100% of the milk penalties and downgrades.  Beyond that, all revenue goes to the farm owner.

[42] In terms of costs borne by the share farmer, I’ve already alluded to the dairy supplies and dairy chemicals in addition to the light and power to the share farmer’s house. The fuel and oil for the motor bikes and half of the consultancy fees, whatever they might be and the relief casual milker and associated employment costs, should they be engaged are also borne by the share farmer.  The share farmer also supplies a four wheel drive motor bike and a working electrical fence tester.

[43] It’s not necessary in the context of these matters to embark on a detailed consideration of the substantive case. Whether or not the Applicant is a contractor or an employee, is fundamental as to whether or not this case has any merits.  The Commission may consider whether the Applicant has a sufficient case.
[44] In my view, it’s far from settled that the Applicant is not an employee.  In my view, it’s probably more likely that she is an employee than not an employee.  The Commission can’t make any findings on contested matters in this hearing, and this is a contested matter, without a hearing of the evidence, as evidence on the merits is rarely called in an extension of time hearing. I haven’t heard evidence to any great extent to the issue of the Arrangement today.  So to be clear, this is not a determination.

[45] If I formed the view that it was quite clear that the Applicant was very likely to be a contractor, it would turn me even more strongly towards not granting this application for an extension of time.  But, I certainly think there is an arguable case, that the Applicant is an employee.

[46] Assuming there is no other jurisdictional barrier, she would then be in a position for the application to proceed, and to be heard on the other factors under the Act as to whether or not the dismissal was harsh, unjust or unreasonable, and whether there was an opportunity to respond to the reason, all of those factors that are in the Act.

[47] Whether the relationship between the parties is a contractor/employee relationship or an employer/employee relationship is in dispute.  The fact that the parties may have agreed that a relationship is a contractor relationship, doesn’t mean that it is.  What the relationship is between the parties is a question of fact against the context of the law.
[48] There have been a number of judgments that have dealt with share farmer arrangements that I’ve considered and as with all such cases, they all turn on their own facts.  It is worth reflecting on at least two of them to give some context for why I am expressing the view that I am.
[49] In the case of Stevenson v Barham 5 the High Court was considering the nature of the share farming relationship between the parties.  The court further considered the indicators of the partnership relationship as follows:

“The share-farming agreement related to some 350 acres of the appellant's property.  The summary of the principal provisions which follows has been taken from the judgment of Hope JA.  The first respondent agreed to provide all dairy cattle necessary for dairying operations on the property and to supply a sufficient number of milking cows to maintain the existing quota attached to the property, to provide certain farming vehicles and machinery, and to supply all labour necessary for the normal process of dairying and farming operations upon the property.  The appellant agreed to supply certain milking machines and other farm machinery, to be solely responsible and liable for all major development work on the property including labour and material for fencing and fencing repairs but excluding any labour that might be supplied by the first respondent for that purpose, and, at his own expense, to supply all seed for pasture improvements.  All other plant and equipment necessary for running the business was to be purchased by the parties in equal shares and was to remain their joint property.  On the termination of the agreement either party was to have the right to purchase the interest of the other in the joint plant and equipment at an agreed price, and in the absence of agreement, the plant and equipment was to be sold and the net proceeds equally divided between the parties.  In this clause the parties were referred to as partners.” 6

[50] Ultimately, it was affirmed by the High Court that that type of relationship, which is, at first glance, a different character to the relationship that was before me, was a business venture of a type traditionally carried on in the rural sector, conducted on a partnership basis and involved the risks attended upon its operation.  There was not, in my view, a transaction necessarily intending to be subversive of the scheme and purposes of industrial legislation, nor a case in which work was performed under some form of contractual arrangement with a person who could be an employer, nor one where the respondent was in the position of an employer or a contractor getting, or purporting to get work done for himself in some way.  Clearly, these arrangements, subject to the particular facts and the form of the relationship, can properly be held to be a genuine share farmer/owner farmer relationship.

[51] There was a different consideration in the Industrial Court of New South Wales where a single Member decision was made in Wheatley v Armstrong 7. That decision required the Court to make a determination with regard to the applicant’s share farming relationship with the respondent over a period of 33 years.  In that matter, the Court found that the relationship was originally a partnership.  Marks J found that, at the relevant time, the relationship was of an employee/employer relationship.  It is worth just recounting some of that decision:

“There are indicia which are against the conclusion that there was an employment relationship.  These include the fact that there was clearly no intention by either of them to create an employment relationship.”

[52] And that would appear to be the case here.

“The taxation arrangements made reflect a non-employment situation.”

[53] Again, in evidence in this particular matter.

“Mr Wheatley was given a great deal of responsibility in the operation of the farm, his remuneration was based in effect on the level of profitability.”

[54] On that score it’s not quite as parallel with the situation we have here where Ms Mullins was paid on a piece rate basis by the amount of milk produced.

“He could work flexible hours.”

[55] There is no dispute about hours worked in this matter.

“Carry out his tasks in a manner completely at his own discretion and finally that he had the ability to and the responsibility to secure substitute or additional labour”

[56] The only difference here being that, of course, under the terms of this arrangement the owner/farmer had to give the okay for the engagement of any such labour.

[57] His Honour went on then to say:

“There are, however, indicia which point to an employment relationship.  To the extent that there was control over the manner in which the Capeen Creek farm operated during this period, it was exercised ultimately by the respondent.  I have already detailed some of the factual matters concerned.  In addition the respondent owned the property, all of the improvements on it, all of the equipment and all of the cattle.  Thus Mr Wheatley contributed nothing but his labour.  The work which was performed by Mr Wheatley for the respondent was carried out on the same farm over a long period of time.

Overall, the competing indicia are finely balanced. However, if I was to ask the question whether Mr Wheatley was in fact working for himself or whether he was indeed working for the respondent, it seems to me that the question is more accurately answered by saying that he was working for the respondent.”

[58] Now, in this matter the Applicant contributed more than her labour.  She contributed dairy chemicals, a farm bike, fuel, and some other matters. I say no more than this:  at the end of the day it’s a live question as to whether or not the Applicant was in fact an employee. It is not a matter in which I can make a determination, and it’s not for me to embark on a detailed consideration of the substantive case.  To the extent that it’s a principal objection of the Respondent, as to whether or not the extension of time was granted, I’m not satisfied it is a factor that weighs against granting the extension, nor am I in a position to say that a determination would be made that it was an employee/employer relationship. Having considered all the factors, the merit criterion is a neutral consideration.

Fairness as between the person and other persons in a similar position

[59] As to fairness as between the person and other persons in a similar position, I made reference to the Full Bench decision earlier where the Full Bench made it clear that in considering a very similar matter of reason for the delay, which was an appeal against the decision of Deputy President Sams 8, an application is not lodged unless it’s actually received, and ultimately it’s the responsibility for the parties to ensure that their applications are actually received by the Commission in the 21 day time period.  To the extent that that deals with a similar consideration, in terms of the reason for the delay, that tends to weigh against the granting of the extension of time to the applicant.

Conclusion

[60] Weighing up the considerations, I am not satisfied that the Applicant had an acceptable reason for the delay.  All of the other factors are neutral for the reasons that I have outlined. In terms of my consideration, other than fairness between the person and other persons in a similar position, the Full Bench made clear that it is ultimately the responsibility of parties to make sure that their applications are lodged.  There is a capacity to provide some leniency in particular circumstances, depending on the facts, but in the circumstances of this case, there is a substantial period of time where there is no satisfactory explanation, other than a general difficulty with using the website, as to the reason that the Applicant did not lodge the application.

[61] Taking into account all of the factors to which I’m required to have regard, under section 394(3) of the Act, I’m not satisfied that there are exceptional circumstances such that I would grant an extension of time for this application and consequently the application is dismissed. An order dismissing the application will be issued concurrently. 9

COMMISSIONER

Appearances:

A Mullins appeared on her own behalf

D Charles and V Charles appeared for the Respondent.

Hearing details:

2015

Launceston:

July 8

 1   [2011] FWCFB 975

 2   Ralph Weingaertner v Sell and Parker Pty Ltd, [2015] FWCFB 4036

 3   Ralph Weingaertner v Sell and Parker Pty Ltd, [2015] FWCFB 4036 , [16]

 4   Form F2 application, page 4

 5 (1977) 136 CLR 190

 6 Stevenson v Barham (1977) 136 CLR 190 at 205 (Aickin J)

 7   [1995] NSWIRC 235

 8   Ralph Weingaertner v Sell and Parker Pty Ltd, [2015] FWCFB 4036

 9   PR569243

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