Anupam Sharma v VetPartners Australia Pty Ltd
[2022] FWC 907
•3 MAY 2022
| [2022] FWC 907 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anupam Sharma
v
VetPartners Australia Pty Ltd
(U2022/2967)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 3 MAY 2022 |
Application for an unfair dismissal remedy – application made outside of the time prescribed – whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time refused – application dismissed.
This is an edited version of my decision delivered ex tempore and recorded in transcript on 13 April 2022.
The respondent, VetPartners Australia Pty Ltd, operates, in partnership with veterinary professionals, several clinics and animal hospitals relevantly in Victoria. The applicant, Dr Anupam Sharma, commenced a relationship with VetPartners in about September 2020.
On or about 10 October 2021, the applicant commenced a relationship (the nature of which is in dispute) with VetPartners at a particular clinic located in Malvern East in the State of Victoria. The applicant was engaged to perform work at the Malvern East clinic, it appears on a temporary basis, for a period of up to 12 months, during a period when the clinic was experiencing labour shortages.
The terms of the engagement are not entirely clear but what is clear is that under the engagement the applicant would receive regular shifts and in respect of each shift, she would charge an hourly rate and GST. This practice was also consistent with the terms on which the applicant provided services to other clinics operated by VetPartners. There is no dispute that the legal relationship was between Dr Sharma and VetPartners rather than any individual clinic.
The applicant was rostered to work over the 2021 Christmas and New Year period, but those shifts were removed because of some concern by the respondent about a conflict, the details of which need not be examined further. It is clear and not in dispute that on 25 January 2022, the relationship, such as it was, between Dr Sharma and VetPartners came to an end, and from that date no further shifts would be offered to her.
There is a dispute about whether the relationship was one of employment or independent contractor and principal. For the purposes of this application to allow an extension of time, it is not necessary to decide that controversy. I will proceed to consider the application on the assumption that there was an employment relationship, which came to an end on 25 January 2022. The applicant lodged an application for an unfair dismissal remedy on 9 March 2022 pursuant to s 394 of the Fair Work Act 2009 (Act). An unfair dismissal remedy application must be made within 21 days after the date the dismissal took effect. The application should have been lodged by 15 February 2022. The application was therefore lodged some 22 days out of time.
The Commission has a discretion to extend the time within which unfair dismissal remedy applications may be lodged, but the power is only exercisable if I am first satisfied that there are exceptional circumstances, taking into account the various matters that are enumerated in s 394(3).
The expression ‘exceptional circumstances’ is not defined in the Act, however it is well established that that expression describes circumstances that are out of the ordinary or unusual or special or uncommon. But the circumstances need not be unique. They need not be unprecedented or even very rare. Exceptional circumstances might amount to a single event which is exceptional or to a combination of factors which individually are unremarkable, but when viewed together are sufficient to persuade the Commission that the circumstances are exceptional.
In assessing whether there are exceptional circumstances, the Commission is required to consider various matters. These matters are set out in s 394(3) as follows:
“(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.”
These are mandatory considerations and each needs to be considered, assessed, and assigned appropriate weight, having regard to the evidence about each matter. I will deal with each of these considerations in turn.
As to the reason for the delay, the Act does not specify what reason or reasons for delay might favour the granting an extension of time. However, decisions of the Commission have referred to a reason or reasons being acceptable or providing a reasonable explanation. The absence of any explanation for any part of the delay will usually, although not exclusively, weigh against an applicant in assessing whether there are exceptional circumstances, and a credible explanation for the entire period of delay will usually weigh in the applicant’s favour. However, the whole of the circumstances needs to be considered and the presence and absence of an explanation for the delay, in and of itself, does not determine an application for an extension of time.
The period of the delay with which we are concerned is not a period within the 21-day window, but the period after that window has closed. However, it is plainly relevant in the assessment to look at the circumstances and the steps taken by an applicant during the 21-day period which might explain the delay afterwards, and which might add some colour or perspective to that which occurred thereafter.
In the instant case the applicant has offered several reasons or a combination of reasons as explaining the delay. The first is the attempts she made almost immediately after the purported dismissal took effect and until the day before she filed this application to raise her dismissal internally with VetPartners.
There is little doubt on the evidence that the applicant engaged in several email communications, seeking an explanation as to the reasons for the purported dismissal. It is also evident that there was a degree of poor relationship management by the respondent in the sense that it did not respond to a number of the emails, and it delayed its response by referring the applicant to other people in the organisation. Some email responses were delayed because personnel with whom discussions needed to occur were said to have been absent from work and were not available for discussions.
I accept that the applicant made numerous and ultimately unsuccessful attempts to seek clarity about the reasons for the ending of the relationship and for not being offered further shifts. It is still not altogether clear from that email communication why it is that further shifts were not to be offered. However, the attempts made by the applicant do not explain why an application to the Commission could not also have been made at the same time or earlier than the date on which it was lodged.
In other words, while I accept that the applicant sought to internally challenge or review the decision to end the relationship, I do not accept that those attempts ultimately explain the reason why an application was not lodged earlier than 22 days after the time period for lodging an application had passed. The attempts, therefore, do not satisfactorily or reasonably explain the delay or any part of it. Noting also that much of the communication occurred before the statutory time limit elapsed.
The second reason proffered related to her medical condition. As this decision is to be published on the Commission’s website, I do not propose to detail Dr Sharma’s medical condition. Suffice to say that during the period shortly after the end of the employment relationship until shortly before the application was lodged the applicant was certified as being unfit for work. She has produced a certificate of no capacity for the period 26 January to 23 February 2022 and for the period 24 February until 4 March 2022, stating that the applicant was not fit to perform her normal work. However, those certificates tell me nothing about her capacity to otherwise function or to make an application to the Commission within time, or within a time before the application was ultimately lodged. It also does not explain any period of delay beyond 4 March 2022.
The medical professionals with whom Dr Sharma consulted were not called to give evidence, but more relevantly it is plain from Dr Sharma’s own material that during the relevant period of incapacity for work, she was able nonetheless to function by consulting various government agencies about possible remedies, consulting external bodies such as JobWatch, consulting an employment lawyer albeit not in a professional capacity and writing emails to VetPartners. All of this suggests that the incapacity under which she suffered was not so debilitating as to have prevented her from making an application, lodging it within time or lodging it at a time earlier than the date on which it was lodged. Consequently, I am not persuaded that the circumstances of her incapacity were such as to provide an acceptable or reasonable explanation for the period of delay or any part of it.
Thirdly, the applicant sets out in her written material the various persons and bodies with whom she consulted about what remedies might be available to her in relation to the ending of her relationship with VetPartners. Both before and after the applicant’s purported dismissal, she spoke to a range of organisations. Her evidence was that she spoke to persons in the Fair Work Ombudsman’s office, the Fair Work Commission offices, JobWatch, Business Victoria and that she had conversations with acquaintances who were relevantly an employment lawyer and accountants with some experience in human resources.
She says that she was not aware that an unfair dismissal remedy application needed to be made within 21 days. She gave evidence that she was not aware of this despite by having consulted the Commission’s website at an early stage and she says that she cannot recall whether in her conversations with staff of the Commission, the Fair Work Ombudsman, JobWatch and her friend or acquaintance, the employment lawyer, she was made aware that there was a statutory time limit within which an unfair dismissal application may be made.
I accept that the circumstances confronting Dr Sharma were such that her status as an employee or independent contractor was grey. There is no doubt, at least on the limited information available to me that some enquiry needed to be made about her status in order to decide what, if any, remedy should be pursued. I accept that she took steps to try and clarify that, and ultimately, she did not receive any definitive answer about her status.
What I do not accept is that during her enquiries with the Commission, the Fair Work Ombudsman, JobWatch and an employment lawyer, when discussing the possibility of bringing an unfair dismissal remedy application, no-one mentioned or alerted the applicant to the 21 day time limit. The probability of that being so is, in my opinion, low. The applicant accepted during her evidence that she does not recall whether she was told and that this is a different proposition to a positive recollection that such advice or information was not proffered. She does not contend the latter.
Dr Sharma was, in my opinion, an honest and candid witness and she made appropriate concessions including the one I have just mentioned. I do not suggest that Dr Sharma is not telling the truth. I accept that she does not recall being given any advice about a time limitation But as I have said, the balance of probability is against her. That none of the those with whom she consulted (and who have familiarity with an important feature of this jurisdiction) mentioned the time limitation, is unlikely.
In any event, ultimately the fact that a person is not aware of a statutory time limit is not, in and of itself, a basis for concluding that there are exceptional circumstances. Much will depend on the circumstances. This is not a case where the applicant is inarticulate, uneducated, or has trouble with the English language. Dr Sharma is a tertiary educated, articulate, obviously intelligent person who has the capacity to make some enquiries for herself by consulting, amongst other sources of information, the Commission’s website or the Fair Work Ombudsman’s website about unfair dismissal remedy applications. Both will have alerted her to the fact that there is a statutory time limitation within which to bring such applications.
In these circumstances I do not accept that the absence of knowledge by Dr Sharma of the statutory time limitation provides an acceptable or reasonable explanation for the delay.
Consequently, the absence of a reasonable and acceptable explanation for the delay in the circumstances weighs against Dr Sharma and weighs against a conclusion that there are exceptional circumstances.
As to whether the applicant became aware of the dismissal after the date the dismissal took effect – there is no dispute the applicant became aware of the purported dismissal on the day it took effect. Notionally, therefore, she had the benefit of the full 21-day period within which to lodge an application. This is a factor that weighs against a conclusion that there are exceptional circumstances, though it is not so significant as to be determinative of the issue.
As to any action taken by the applicant to dispute her dismissal, it is plain the applicant took several steps to dispute her dismissal by communicating persistently, often without acknowledgement, with VetPartners about the reasons for the dismissal. A purpose of this consideration is to make an assessment about whether the employer should have been surprised that some action might flow as a consequence of the ending of the relationship. It is plain from the communications that Dr Sharma was aggrieved by the actions that had been taken and was looking for a response. In those circumstances, VetPartners was on notice that there was a dispute about the circumstances of the ending of the relationship and her status as an employee or an independent contractor. It should hardly have been a surprise to the respondent that the application was ultimately brought.
I am satisfied that there were steps taken by the applicant to dispute her dismissal. In the circumstances, I consider that this matter weighs, though not heavily, in favour of a conclusion that there are exceptional circumstances.
As to prejudice, the respondent does not assert any prejudice, although the period of delay, in a relative sense to the period within which an application can be made, is not short. That is, it is more than the initial period the statute allows, in absolute terms it is a short period, it is a period of three weeks.
In those circumstances it is hard to see that there is any prejudice that the employer would suffer if this matter proceeded or otherwise. The question of prejudice here is not concerned with the fact that the employer may have to defend litigation. Rather the issue is whether, if it is forced to defend the litigation, it will suffer prejudice because of the delay amongst other considerations.
The employer, as I have indicated, has properly conceded that it will not suffer any prejudice and I so conclude. But the absence of prejudice in and of itself does not amount to exceptional circumstances. Nor does the period of the delay in this case justify such a conclusion. I consider that in all the circumstances this consideration of the absence of prejudice weighs neutrally.
As to the merits of Dr Sharma’s application, it is not without complication. There are several jurisdictional issues that the employer has raised. There is the question of whether the applicant met the minimum employment period before the purported employment ended. That presumably stems from the fact that there was a relationship which had commenced sometime in October 2021 and presumably that the earlier periods of service rendered at other clinics were not continuous periods of employment which would be counted towards a period of service for the purposes of assessing the minimum employment period. That is a matter that will ultimately need to be determined should this matter proceed further.
A more difficult aspect of the application is the question whether there was a dismissal within the meaning of the statute and whether the applicant was an employee at all. It must be said that on the basis of the limited material before me, particularly the applicant’s offer, which was accepted, of engagement at an hourly rate plus GST, the relationship into which the parties entered appears inconsistent with employment. Necessarily, that is a very preliminary view, but nonetheless one that needs to be made in order to assess the merits of the application.
Balanced against this of course is the fact that the circumstances of the discharge if there be an employment relationship were less than ideal. Discharging the person from employment or engagement without articulating the reason or giving the applicant an opportunity to respond to conflict allegations, seems inherently unfair, at least on a preliminary assessment of the circumstances. And so that aspect of Dr Sharma’s complaint is not without merit. But the difficulty with this application is whether her status was as an employee at the relevant time.
Taking all of this into account, whilst I do not say that the application is without merit, for the reasons that I have articulated it has low prospects of succeeding. Consequently, this consideration weighs against a conclusion that there are exceptional circumstances.
As to fairness between Dr Sharma and other persons in a similar position, as I explained during the hearing this consideration requires a comparison between Dr Sharma and another person or other people in similar circumstances or a similar position to Dr Sharma. The assessment involves a comparison between Dr Sharma’s position and others in order to assess relative fairness. The respondent did not say anything about this matter, and Dr Sharma similarly could not identify any other relevant comparator. I am in a similar position in that I am not aware of any other relevant comparator either currently or by reference to any decision of the Commission, which would be relevant. This consideration weighs neutrally.
Except for the steps taken by the applicant to dispute her dismissal, the other relevant matters to which I must have regard either weigh against Dr Sharma or are neutral. The application has low prospects should it proceed, and the reasons for the delay offered by the applicant do not satisfactorily explain any period of the delay. So, when I look at the circumstances individually or collectively, I am simply not persuaded that there are exceptional circumstances.
Consequently, I do not have the power to exercise my discretion in light of that conclusion. That says nothing about the genuineness of the grievance that Dr Sharma has raised about the ending of the relationship, or that there are no other remedies available to Dr Sharma to pursue her grievance. But what cannot occur, in light of my conclusion, is that this application be permitted to proceed beyond the stage today. Therefore, the application by Dr Sharma to be allowed a further period within which to lodge her application is refused.
The application has not been made within time and therefore not in accordance with the Act. Consequently, the unfair dismissal remedy application of Dr Sharma is dismissed.
An order giving effect to this decision was separately issued in PR740353.
DEPUTY PRESIDENT
Appearances:
Dr A Sharma on behalf of herself
Ms A Doney on behalf of the Respondent
Hearing details:
2022
Melbourne (via video)
13 April
Written submissions:
Applicant, 22 March 2022
Printed by authority of the Commonwealth Government Printer
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