Emma Julia Hill v Mulpha Sanctuary Cove (Developments) Pty Limited
[2023] FWC 2882
•1 NOVEMBER 2023
| [2023] FWC 2882 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emma Julia Hill
v
MULPHA SANCTUARY COVE (DEVELOPMENTS) PTY LIMITED
(U2023/8141)
| COMMISSIONER CRAWFORD | SYDNEY, 1 NOVEMBER 2023 |
Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed
Background
Emma Hill (Ms Hill) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed by Mulpha Sanctuary Cove Rec Club Pty Ltd (Mulpha) on 9 June 2023.
Ms Hill’s Form F2 unfair dismissal application was filed on 29 August 2023. The Form F2 indicated the application was not filed within 21 days of the dismissal taking effect and sought an extension of time for the filing of the application.
On 20 September 2023, Mulpha filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised jurisdictional objections on the basis that Ms Hill was not an employee of Mulpha and was not dismissed by Mulpha. The Form F3 also identified that the application was not filed within 21 days of the dismissal and argued that an extension of time should not be granted.
I issued directions for the filing of material in relation to whether an extension of time should be granted for the filing of Ms Hill’s application on 13 September 2023. The directions were complied with by the parties. I listed a determinative conference/hearing concerning the extension of time issue for 6 October 2023 via video.
Ms Hill was represented by her friend, Shannon Ball, at the determinative conference/hearing on 6 October 2023. Mulpha was represented by its Senior Legal Counsel, Daniel Kentwell.
At the commencement of the proceeding, I sought the views of the parties regarding whether a hearing should be conducted as required by s.399 of the FW Act. I indicated my initial view was that it was more appropriate to conduct a determinative conference given Ms Hill was not legally represented. This was supported by the parties, and I decided to conduct the proceeding as a determinative conference.
In addition to raising jurisdictional objections, the Form F3 filed by Mulpha identified that the application had identified an incorrect respondent. The Form F2 application identified the respondent as Mulpha Sanctuary Cove (Developments) Pty Ltd. Mulpha’s Form F3 identified the correct respondent as Mulpha Sanctuary Cove Rec Club Pty Ltd. I raised this issue with Ms Ball and Ms Hill at the beginning of the determinative conference and they accepted they had identified the wrong respondent on the application form. I then indicated I intended to use my discretionary power under s.586 of the FW Act to amend the Form F2 application to identify Mulpha as the respondent. Mulpha did not oppose this course of action. I determined the Form F2 application would be amended to identify Mulpha as the respondent.
During the determinative conference on 6 October 2023, I was taken by Ms Ball to a letter from Dr Luze Jewaskiewitz. The letter relevantly states: “Emma in relation to the matter re; medical certificate for Fair Work, unfortunately I will not be able to continue assisting with this matter due to a conflict of interest with the company whom you are raising a case against. May I suggest that you see your original treating Doctor, Dr Marianne Botha for anything further.”[1]
Given it had become apparent that Ms Hill was relying on a medical condition as a reason for the delay in filing her application, I became concerned Ms Hill would be prejudiced by Dr Jewaskiewitz’s perceived conflict and consequent refusal of Ms Hill’s request for a medical report. Ms Hill was adamant she had attended several medical appointments during the relevant periods. I indicated to the parties I was minded to adjourn the determinative conference to allow Ms Hill an opportunity to seek further evidence about her treatment by Dr Jewaskiewitz. Mulpha did not consent to this course of action but did not make extensive submissions opposing it. After hearing from Mr Kentwell, I decided to adjourn the determinative conference. I directed Ms Hill to file any further medical evidence by 13 October 2023 and listed another determinative conference for 27 October 2023.
Ms Hill filed further material in accordance with my direction on 13 October 2023.
Ms Ball continued representing Ms Hill at the second determinative conference on 27 October 2023 and Mr Kentwell continued representing Mulpha.
Material filed
Ms Hill
In addition to her Form F2 application, Ms Hill relied on the following evidence in support of an extension of time being granted:
· A letter titled “Notice of immediate termination of Independent Contractor Agreement” from Mulpha to Ms Hill dated 9 June 2023. I marked this Exhibit A1.
· An email from Mr Kentwell to Ms Hill dated 23 June 2023. Although this was marked “without prejudice”, both parties filed the letter with the Commission. I marked the email Exhibit A2.
· A document titled "Independent Contractor Agreement” between Mulpha and Ms Hill dated 5 July 2022. I marked this document Exhibit A3.
· A medical certificate from Dr Marianne Botha dated 24 May 2023. The certificate states Ms Hill was suffering from “work-related stress and anxiety” and is unfit for work from 24 May 2023 to 28 May 2023. I marked the certificate Exhibit A4.
· An email from Ms Hill to the Commission dated 8 September 2023. The email contains an explanation for the delay in the filing of the unfair dismissal application. I marked this Exhibit A5.
· A document containing screenshots of a series of text messages and emails to Ms Hill regarding her work with Mulpha. I marked this document Exhibit A6.
· A document containing screenshots of a series of text messages and emails to Ms Hill regarding a reduction in her work with Mulpha. I marked this document Exhibit A7.
· A covering email dated 5 May 2023 with a “Breach Notice” letter attached also dated 5 May 2023. The letter is from Steve Sammes, General Manager of Mulpha, to Ms Hill. I marked these documents Exhibit A8.
· An email response from Ms Hill to Mr Sammes dated 5 May 2023. I marked this email Exhibit A9.
· An email from Ms Hill to Mr Sammes dated 6 May 2023 regarding lost classes with Mulpha. I marked this email Exhibit A10.
· An email response from Ms Sammes to Ms Hill dated 8 May 2023. I marked this email Exhibit A11.
· A covering email dated 9 June 2023 from Mr Sammes to Ms Hill. The email had the “Notice of immediate termination of Independent Contractor Agreement” letter attached. I marked the email and letter Exhibit A12.
· An email from Ms Hill to Mr Kentwell dated 19 June 2023. The email complains about Mulpha ending Ms Hill’s employment and requests a meeting to discuss the matter. There is reference to a claim with the Fair Work Ombudsman if the matter is not resolved. I marked this email Exhibit A13. The document is marked “Without Prejudice” but Ms Hill filed the email with the Commission and Mulpha did not object to it being tendered.
· A holding email from Mr Kentwell to Ms Hill dated 22 June 2023. The email is marked “Without Prejudice” but Ms Hill filed the email with the Commission and Mulpha did not object to it being tendered. I marked the email Exhibit A14.
· An email from Ms Hill to the Commission dated 20 September 2023. The email contains a further explanation for the delay in the filing of Ms Hill’s application. I marked the email Exhibit A15.
· A tax invoice issued by Sock-It & Co. to Mulpha for $720 on 5 July 2022. I marked the invoice Exhibit A16.
· A medical certificate from Dr Botha dated 18 September 2023. The certificate concerns Ms Hill’s attendance with Dr Botha on 24 May 2023 and provides additional details about the anxiety Ms Hill was suffering including insomnia. I marked the certificate Exhibit A17.
· The letter from Dr Jewaskiewitz as referred to above. The letter explains the doctor is unable to continue assisting Ms Hill due to a conflict of interest. I marked the letter Exhibit A18.
· A letter from the Practice Manager of EliteMed which states Ms Hill “was seen at this clinic on the 1/8/2023 and 8/9/2023.” I marked this letter Exhibit A19.
· A letter from Dee Hardy confirming Ms Hill attended counselling sessions with Shifting Tides Counselling on 12 May 2023, 25 May 2023, 12 June 2023 and 8 July 2023. I marked this letter Exhibit A20.
Ms Hill was not cross-examined in relation to any of this material.
Ms Hill also sought to tender a witness statement from her housemate, Bianca Dunn, dated 9 October 2023. The statement was in the form of a statutory declaration but had not been properly executed. Mulpha opposed the admission of this evidence on the basis that it traversed beyond what Ms Hill was directed to file following the first determinative conference on 6 October 2023. Ms Hill indicated Ms Dunn was not available for cross-examination if I admitted the statement. I considered the statement would be of little probative value to the issue of Ms Hill’s medical condition, given Ms Dunn is not a doctor. In circumstances where Mulpha objected to the statement being admitted, and where Ms Dunn was not available for cross-examination, I decided not to admit this evidence.
Ms Ball provided a written submission on behalf of Ms Hill dated 13 October 2023 and also provided oral closing submissions at the end of the determinative conference on 27 October 2023.
Mulpha
In addition to its Form F3 response, Mulpha relied on the following material in opposing the granting of an extension of time:
· Outline of submissions dated 22 September 2023.
· Three invoices from Sock-It & Co to Mulpha where Ms Hill was invoicing Mulpha for Pilates classes she had undertaken. I marked the invoices Exhibit R1.
· A Certificate of Currency for Combined Malpractice, Public & Products Liability Insurance issued to Ms Hill and Sockitnco for the period of 30 June 2022 to 29 September 2023. I marked this certificate Exhibit R2.
· A document from the Australian Government’s “ABN Lookup” service containing details for the ABN 16 558 489 092. The entity name is identified as Ms Hill and the following business names are listed: Up The Hill Digital, Sock-It & Co and King Kingsley. I marked this document Exhibit R3.
· A series of documents showing websites apparently operated by Ms Hill under the names of Up The Hill Digital, Sockitandco and King Kingsley. I marked the documents Exhibit R4.
Mr Kentwell was not cross-examined on any of this evidence.
Mr Kentwell also provided oral closing submissions at the end of the determinative conference.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
The parties agreed that if Ms Hill is found to have been “dismissed”, the effective date for the dismissal is 9 June 2023. As a result, the 21-day period referred to in s.394(2)(a) of the FW Act ended on 30 June 2023. The application was filed on 29 August 2023 and was filed 60 days outside the 21-day period. As a result, Ms Hill needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether Ms Hill first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms Hill 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 Ms Hill and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 30 June 2023. The delay is the period commencing immediately after that time until 29 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
Ms Hill does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms Hill has not provided any reason for any part of the delay.[6]
Ms Hill provided the following explanations for the delay in filing her unfair dismissal application:
· Ms Hill was hopeful that she could resolve the matter directly with Mulpha until she received Mr Kentwell’s email dated 23 June 2023.[7]
· Ms Hill was suffering from mental health issues from around May 2023 onwards and she did not feel fit to pursue an unfair dismissal application until late August 2023.
I accept the evidence demonstrates Ms Hill attempted to resolve her issues directly with Mulpha via the email she sent to Mr Kentwell on 19 June 2023.[8] This included a request for a meeting before 24 June 2023. I also accept it did not become clear the issues could not be resolved between the parties until Mr Kentwell’s reply on 23 June 2023.[9] However, I do not find this reason to be overly persuasive given Ms Hill was on notice from 23 June 2023 that the matter was not resolved, and this was still a week before the 21-day period was due to lapse. At best, I consider this constitutes a marginally acceptable reason for not making an application until 23 June 2023.
Ms Hill had some difficulty acquiring evidence about her medical treatment because Dr Jewaskiewitz disclosed a conflict of interest.[10] This was why I took the unusual step of adjourning the determinative conference and providing Ms Hill with a further opportunity to file evidence regarding her condition.
I consider the evidence regarding Ms Hill’s medical condition comprises:
· Medical reports from Dr Botha dated 24 May 2023[11] and 18 September 2023.[12] The reports confirm Ms Hill attended Dr Botha on 24 May 2023 and was suffering from anxiety, including insomnia. Ms Hill was certified unfit for work from 24 May 2023 to 28 May 2023.
· A letter from Dr Jewaskiewitz dated around 18 September 2023 which states “I will not be able to continue assisting with this matter due to a conflict of interest”.[13]
· A letter from the Practice Manager of EliteMed which confirms Ms Hill attended the clinic on 1 August 2023 and 8 September 2023.[14] The letter does not identify why Ms Hill attended the clinic. It is not entirely clear, but I am prepared to assume on the material that Ms Hill attended appointments with Dr Jewaskiewitz on these dates. I am also prepared, on balance, to assume that Ms Hill’s attendance at the clinic was related to her mental health difficulties, given there is no evidence Ms Hill was having any other medical issues around this time.
· A letter from Shifting Tides Counselling which confirms Ms Hill attended counselling sessions on 12 May 2023, 25 May 2023, 12 June 2023 and 8 July 2023.
· Written evidence from Ms Hill sent to the Commission on 8 September 2023 regarding the reasons for the delay in the filing of her application. Mr Kentwell did not cross-examine Ms Hill on the content, despite being put on notice I considered the document included evidence from Ms Hill. The document refers repeatedly to Ms Hill’s mental health issues and Ms Hill seeking medical assistance.
I consider this evidence is sufficient to establish Ms Hill was suffering from mental health issues from around 24 May until at least September 2023. Ms Hill was not cross-examined on her evidence to this effect, and it is clear she was seeking assistance from doctors and/or counsellors during May, June, July, and August 2023.
However, the evidence regarding whether the mental health issues prevented Ms Hill from filing an unfair dismissal application until 29 August 2023 is less convincing. I consider there is significant force to Mr Kentwell’s submission that Ms Hill was able to arrange the email to him on 19 June 2023 which requested a meeting and threatened legal action. I was not provided with sufficient information to establish why Ms Hill was able to take these steps on 19 June 2023, but was unable to file an unfair dismissal application until 29 August 2023.
In all the circumstances, I have decided the reason for the delay to be a neutral factor. I am satisfied Ms Hill was experiencing some mental health issues during the relevant time periods, but do not consider there is sufficient evidence to link this condition to her inability to file an unfair dismissal application before 29 August 2023. I consider this latter type of evidence would be required in order for me to find the reason for the delay weighs in favour of the granting of an extension of time.
Did Ms Hill first become aware of the dismissal after it had taken effect?
Ms Hill became aware that Mulpha was terminating its contract with her on the same day the termination took effect, 9 June 2023.[15] I consider this to be a neutral factor.
What action was taken by Ms Hill to dispute the dismissal?
It is clear Ms Hill took action on 19 June 2023 to dispute her “dismissal” by Mulpha via her email to Mr Kentwell. This was within the 21-day filing period. I consider this factor weighs marginally in favour of granting an extension of time. I find this factor only marginally weighs in favour of an extension being granted because although the email threatened further action in relation to the “dismissal” if the issues were not resolved, no further action appears to have been taken until the unfair dismissal application was filed on 29 August 2023.
What is the prejudice to the employer (including prejudice caused by the delay)?
As Mulpha submitted, a long delay gives rise to a general presumption of prejudice.[16] Mr Kentwell also referred to Mulpha having scant internal legal resources and the burden of having to continue dealing with the application. However, Mr Kentwell also referred to Mulpha being a large organisation with around 800 employees. Given Mulpha was aware that Ms Hill was contesting the end of her relationship with Mulpha from 19 June 2023, I consider any prejudice to Mulpha is minimal, despite the reasonably lengthy delay. I consider this to be a neutral factor.
What are the merits of the application?
Personnel Contracting
The case Ms Hill is seeking to run, whereby she is alleging she was really an employee of Mulpha despite signing a comprehensive independent contracting agreement, is very difficult following the High Court’s judgment in Personnel Contracting.[17] In Personnel Contracting the plurality (Kiefel CJ, Keane and Edelman JJ) stated (footnotes omitted):
“Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide‑ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require.
In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.”[18]
The subsequent Full Bench decision in Deliveroo[19] is illustrative of the practical consequences of the High Court’s judgment to the assessment of whether an employment relationship exists. In Deliveroo, the Full Bench stated:
“In the circumstances described, the application of the Personnel Contracting decision has obliged us to ignore certain realities concerning way in which the working relationship between Mr Franco and Deliveroo operated in practice…
…
Had we been permitted to take the above matters into account, as the Commissioner did, we would have reached a different conclusion in this appeal. As a matter of reality, Deliveroo exercised a degree of control over Mr Franco’s performance of the work, Mr Franco presented himself to the world with Deliveroo’s encouragement as part of Deliveroo’s business, his provision of the means of delivery involved no substantial capital outlay, and the relationship was one of personal service. These matters, taken together, would tip the balance in favour of a conclusion that Mr Franco was an employee of Deliveroo. However, as a result of Personnel Contracting, we must close our eyes to these matters.”[20]
Ms Ball referred quite persuasively in her closing submissions to the unequal bargaining position between a large corporation like Mulpha and Ms Hill and argued that this imbalance needed to be considered when assessing the contractual arrangements between the parties. There may well be merit from a policy perspective to the argument that applying the same legal principles to contractual interactions between large corporations with their respective teams of lawyers, and then a circumstance like this case, where Ms Hill is essentially an individual with an ABN negotiating with a corporation with around 800 employees, results in unfair outcomes. However, the law is clear. The High Court’s judgment must be applied.
This case
The Independent Contractor Agreement[21] between Ms Hill and Mulpha is unsurprisingly drafted in language that reflects the rights and obligations associated with an independent contracting relationship, and not an employment relationship. Ms Ball did not take me to any rights and obligations within the Independent Contractor Agreement that are consistent with an employment relationship.
Further, Mulpha filed evidence to show Ms Hill issued invoices[22] in accordance with the Independent Contractor Agreement and sourced insurance[23] for her business, again in accordance with the Independent Contractor Agreement. Mulpha also filed evidence to show Ms Hill uses the same ABN to operate businesses under the names of Up the Hill Digital, Sock-It & Co and King Kingsley businesses.[24]
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[25]
However, I consider the evidence in this case establishes that Ms Hill’s prospects of establishing she was an employee of Mulpha are very limited. If Ms Hill does not establish she was an employee of Mulpha, Mulpha’s jurisdictional objections will be upheld because Ms Hill is not a person “protected from unfair dismissal” as required by s.382 of the FW Act and was not “dismissed” by Mulpha as required by s.385(a) of the FW Act.
I find the merits of Ms Hill’s application weigh heavily against the granting of an extension of time.
Fairness as between Ms Hill and other persons in a similar position
Neither party advanced a persuasive submission regarding the applicability of this factor. I consider this to be a neutral factor.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[26] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[27] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[28]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
I have found the reason for delay in this case to be a neutral factor and have found that the merits of the application weigh heavily against the granting of an extension of time. In circumstances where I found the other factors neutral, and that the steps Ms Hill took to dispute the dismissal weigh only marginally in favour of granting an extension of time, I am not satisfied the “high hurdle” of exceptional circumstances has been satisfied.
Not being satisfied that there are exceptional circumstances, I decline to grant an extension and dismiss the application.
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances:
Ms Ball representing Ms Hill.
Mr Kentwell for Mulpha.
Determinative Conference details:
6 and 27 October.
Microsoft Teams.
2023.
[1] Exhibit A18.
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Exhibit A2.
[8] Exhibit A13.
[9] Exhibit A2.
[10] Exhibit A18.
[11] Exhibit A4.
[12] Exhibit A17.
[13] Exhibit A18.
[14] Exhibit A19.
[15] Exhibit A12.
[16] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541
[17] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 312 IR 1.
[18] Ibid at [59] and [60].
[19] Deliveroo Australia Pty Ltd v Franco [2022] FWCFB 156.
[20] Deliveroo Australia Pty Ltd v Franco [2022]] FWCFB 156 at [53] and [54].
[21] Exhibit A3.
[22] Exhibit R1.
[23] Exhibit R2.
[24] Exhibit R3.
[25] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[26] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[27] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[28] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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