Angellita Stella v The Men's Gallery Australia Pty Ltd

[2021] FWC 4270

[2021] FWC 4270

FAIR WORK COMMISSION

DECISION

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

Angellita Stella
v
The Men’s Gallery Australia Pty Ltd
(U2021/4784)

DEPUTY PRESIDENT COLMAN MELBOURNE, 20 JULY 2021

Unfair dismissal application filed out of time

[1] This decision concerns an application by Ms Angellita Stella for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009(Cth) (Act). Ms Stella contends that her employment with The Men’s Gallery Australia Pty Ltd (respondent) was terminated with effect from 13 August 2018. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 3 September 2018. Ms Stella’s application was lodged on 2 June 2021. The application is two years and nine months out of time. Ms Stella asks the Commission to grant a further period for the application to be made under s 394(3). The company opposes this request.

[2] The background to this matter may briefly be summarised as follows. In September 2017, Ms Stella commenced working as a performer at the respondent’s business in Melbourne. Ms Stella worked one or two shifts a week until 13 August 2018. At the end of her shift on that day, Ms Stella called the respondent’s entertainment coordinator, Ms Fiona Nazifi, and made a number of allegations about the conduct of certain co-workers. According to Ms Nazifi, Ms Stella said that on her next shift, she would need to bring a knife to work to protect herself. Ms Nazifi believed that Ms Stella was under the influence of a hallucinatory substance. Ms Stella was not rostered to work again.

[3] Ms Stella contends that she was an employee of the respondent. The respondent contends that performers are not its employees because they work independently at the venue and are not paid by the respondent, but keep all earnings given to them by patrons. Ms Stella did not dispute that these were the relevant payment arrangements. Based on these uncontested facts, it appears to me that there was no ‘work for wages’ bargain between the parties, and that Ms Stella was not an employee of the respondent, but was working for herself. The consequence of this would be that the unfair dismissal application must fail, because s 394 of the Act concerns unfair dismissal from employment. However, the application was listed for an extension of time hearing only, and little has been said about the legal character of the parties’ relationship. I will therefore proceed to consider Ms Stella’s application for an extension of time assuming for the moment that she was an employee of the respondent.

[4] Section 394(3) of 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’. I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, where the Full Bench stated that, to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that exceptional circumstances can include a combination of ordinary factors which, although individually of little significance, when taken together can be considered exceptional.

[5] The requirement that there be exceptional circumstances before time can be extended under 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 simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[6] Section 394(3) requires the Commission, when considering whether to allow a further period for an application to be made, 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. I will consider each of these matters as they pertain to Ms Stella’s application.

[7] The Act does not specify what reason for the delay (s 394(3)(a)) might tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Ms Stella contended that she was unable to lodge her application on time because of a number of factors. First, Ms Stella said that around the time of her dismissal, she had an abusive boyfriend, against whom she obtained an intervention order, but despite the order he continued to harass her. Secondly, she said that from the time of her dismissal, she went through two or three years of psychosis, and that she spent time in hospital and was diagnosed with depression and schizophrenia and was medicated, such that she was not able to function properly. Thirdly, Ms Stella said that some three months after her dismissal, she tried to contact Ms Nazifi, but she was on maternity leave and the new manager would not rehire her, so she decided to defer discussions about her employment until Ms Nazifi returned. Fourthly, Ms Stella said that the COVID-19 pandemic closed the business for a long time which also delayed her making an application to the Commission.

[8] I accept Ms Stella’s evidence that she had an abusive boyfriend, and that this would have made it difficult for her to attend to lodging an application, but I do not consider that this can fairly be regarded as an explanation for a two and a half year delay in lodging the application. I also accept that Ms Stella has suffered from poor mental health over the period since her dismissal, however she has not provided any medical evidence about her condition, save for an undated medical report from on or around January 2020, confirming that she had experienced psychotic symptoms, and prescribing medication. I am not persuaded that Ms Stella’s mental health condition prevented or seriously impeded her from lodging an unfair dismissal application over the entire period since her dismissal. Ms Stella has for example been able to correspond with Ms Nazifi on numerous occasions seeking further work. I do not accept that Ms Stella was unable to complete and lodge the simple F2 unfair dismissal form throughout this period.

[9] The third and fourth reasons advanced by Ms Stella are not in fact reasons for delay. Ms Stella’s efforts to seek reengagement by the respondent do not explain delay in filing the unfair dismissal application. And although the closure of the business during the COVID-19 pandemic affected Ms Stella’s ability to contact the respondent, it did not prevent her from lodging her application. To the extent that Ms Stella contends that she did not know that she could file an unfair dismissal application until the time she did so, this is not an acceptable reason for delay.

[10] I do not consider that Ms Stella has provided an acceptable or reasonable explanation for the delay in lodging her application. This weighs against an extension of time.

[11] The second consideration is whether the person first became aware of the dismissal after it had taken effect (s 394(3)(b)). Ms Stella stated in her application that she was notified of her dismissal on 26 October 2020 and explained that it was on this date that Ms Nazifi sent her a text message asking that she stop contacting her. However, in her evidence Ms Stella acknowledged that she was aware of her dismissal from an earlier date. Ms Stella said that later in 2018, she had contacted Ms Nazifi to ask if she could return to the roster, and that Ms Nazifi had said words to the effect of ‘you’re not getting your job back that easily’. From this time, Ms Stella was aware that she no longer had a job at the respondent’s business. I accept that Ms Stella became aware of her dismissal after it took effect, however this occurred later in 2018, not in October 2020. I consider this to be a neutral factor in considering whether to extend time.

[12] The Commission must consider whether the person took any action to dispute the dismissal (s 394(3)(c)). Ms Stella said that she had made numerous attempts to contact the respondent and enquire about the status of her employment and that when she became concerned that her employment may have been terminated, she sought to schedule meetings to discuss this with the respondent. However, in fact what occurred was that Ms Stella sought to get her job back. There is no evidence that she disputed her dismissal, other than by filing the present application. This too is a neutral consideration.

[13] The Commission must also consider any prejudice to the employer, including prejudice caused by the delay (s 394(3)(d)). A delay of nearly three years in lodging an application is likely to involve some forensic prejudice to the employer in preparing its defence. The extent of the prejudice would depend on the evidence that was required in order to respond to Ms Stella’s case, which remains undeveloped, however it appears likely that the ability of witnesses to remember details of relevant events will be compromised to some degree. This weighs against an extension of time.

[14] As to the merits of the application (s 394(3)(e)), Ms Stella contended that her dismissal was unfair because the company dismissed her without reason, and simply ceased rostering her for work because it believed she had been under the influence of a hallucinatory substance. Ms Stella said that she had raised allegations about the conduct of other employees, and that based on a single conversation with her manager, she was dismissed without warning or notice. The respondent contended that Ms Stella’s application had no merit because she was plainly never its employee, and that in any event it had good reason to dismiss Ms Stella based on its reasonable concerns about her being under the influence, at work, of a hallucinogenic substance.

[15] There could be no merit in an application that failed to make good an essential jurisdictional requirement, such as the requirement that the applicant be a person who was dismissed from employment with the respondent. However, assuming Ms Stella could establish that she had been an employee of the respondent, the merits of the present application would then turn on evidence that would need to be tested if an extension of time were granted and the matter were to proceed. Much would depend on factual findings. On the limited material before me, I consider that Ms Stella’s application is not without substantive merit, but that the respondent also has a prima facie defence to the claim. I consider the merits to be a neutral consideration in deciding whether to extend time.

[16] Section 394(3)(f) requires the Commission to consider ‘fairness as between the person and other persons in a similar position’. Applications to extend time generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Stella and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[17] Ms Stella has clearly endured some very difficult circumstances. However, for the purposes of considering whether to grant an extension of time, and having regard to s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. None of the considerations in s 394(3) weigh in favour of an extension. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time, and I decline to do so. Ms Stella’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

A.Stella for herself
G Prince for the respondent

Hearing details:

2021
Melbourne
19 July

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