Geraldine Blyth v Ive Distribution Pty Ltd

[2022] FWC 3209

[2022] FWC 3209

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Geraldine Blyth
v

IVE Distribution Pty Ltd

(U2022/10615)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 6 DECEMBER 2022

Application for an unfair dismissal remedy – extension of time - exceptional circumstances not found – application dismissed

1. These are edited reasons of my decision delivered ex tempore and recorded in transcript on 6 December 2022.

1. On 4 November 2022, Mrs Blyth made an application to the Commission for an unfair dismissal remedy. She contends that she was unfairly dismissed by the Respondent when her employment ended on 29 September 2022.

1. Section 394(2) of the Fair Work Act 2009 (Cth) (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).

1. In order for the application to proceed, Mrs Blyth requires the Commission grant a further period of time within which to bring her application.

1. The question of whether to grant additional time was dealt with at a hearing on 6 December 2022, at which the Applicant gave evidence in support of her application.

Extension of time

1. Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]

1. In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

·   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.

Relevant factors

Reason for delay

1. The Act does not specify what reason for delay might justify granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[2]

1. In this case, the application was lodged on 4 November 2022 and the Applicant’s engagement ended on 29 September 2022. Mrs Blyth’s application was filed 15 days after the 21-day time limit under the Act, ending at midnight on 20 October.

1. Mrs Blyth was notified on 1 September 2022 that the Respondent was terminating its engagement with her, effective 29 September 2022.

1. Mrs Blyth’s explanation of the delay in making her application is that she had suffered a medical emergency on 5 August 2022 and following release from hospital continued to suffer various significant symptoms including dizziness, instability, and severe nausea. As a result, she required extensive assistance from her family to undertake even basic daily activities. She said that her symptoms were exacerbated by the stress and anxiety resulting from losing her job and she found it very difficult to recall events and relevant information to include in the unfair dismissal application. Using computers and screens also increased the severity of her symptoms. The Applicant provided details of numerous medical appointments in September, October and November to deal with her health and provided a letter dated 9 November 2022 from a Dr Chan to support her application. In that letter Dr Chan stated that the severe vertigo she was suffering had been very debilitating, and that he believed “her condition had significantly affected her functional capacity in the past three months.”

1. I accept that the Applicant experienced significant health issues with serious symptoms both before and after her engagement with the Respondent ended. However, Mrs Blyth’s evidence about her health, the schedule of medical appointments that she attended, and the letter from Dr Chan, do not go so far as to establish that she was so unwell that she was rendered unable to make the unfair dismissal application for the entirety of the 21-day period between the termination of her engagement and 20 October 2022. There is evidence that she did have some capability, for example on 23 September 2022 she was able to read and approve a letter prepared by her husband that was sent to the Respondent, raising a dispute about various claims under her contract. Similarly, she could have arranged for a family member to prepare an unfair dismissal application, which does not require significant detail to be included in order to lodge it with the Commission, for her approval.

1. I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging her application. From 1 September 2022, Mrs Blyth knew that her engagement was to be terminated effective 29 September 2022. Whilst I accept that she was unwell, I do not find that she was so unwell for the entirety of the period that she was unable to make the application within the 21-day period required by the legislation. I also accept that Mrs Blyth found the experience of losing her job to be very stressful and caused a great level of anxiety however it is neither unusual nor exceptional for a person to experience this when they are dismissed.

1. Overall, I am not satisfied that Mrs Blyth has provided an acceptable explanation for the delay and that is a matter that weighs against granting an extension of time.

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

1. The Applicant was informed by letter dated 1 September 2022 that her contract with the Respondent was terminated, effective 29 September 2022. Accordingly, she had the benefit of the full 21-day period in which to make an application.

Any action taken by the person to dispute the dismissal

1. I consider this a neutral consideration in this case.

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

1. The Respondent generally asserts that it is prejudiced by the application being lodged out of time. Whilst I do not agree that there is any particular prejudice to the Respondent by the grant of additional time, I accept the Respondent’s submission that the absence of any prejudice to the employer is not a sufficient basis to grant an extension of time. I have treated this as a neutral consideration.

Merits of the application

1. At this early stage of the application, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I assess the merits based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

1. The Respondent terminated its engagement with Mrs Blyth following a restructure which resulted in the services she provided to no longer be required. The Respondent asserts that Mrs Blyth was an independent contractor and not an employee.

1. In 2009, Mrs Blyth entered into an agreement with Salmat Mediaforce Pty Ltd to provide letterbox distribution related services as an Area Representative, through a registered family partnership entity. In 2019, Salmat was acquired by the Respondent, and the Applicant consented to novation of her contract with Salmat to the Respondent. The agreement is a comprehensive document which expressly provides that the Area Representative is engaged as an independent contractor and not as an employee. The contractual terms include that the Area Representative has discretion regarding the way the services are provided, and the Respondent has no right to determine or control the activities of the Area Representative, nor the right to require the Area Representative to report to the Respondent on the activities. Other terms include that payment is by results based on tax invoices issued by the Respondent and the Area Representative is required to be registered for GST.

1. The Applicant asserts that while she acknowledges signing the agreement that states she is an independent contractor, she believes that she should be considered to be an employee having regard to the decision in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd.[3] Mrs Blyth relies on the amount of control the Respondent is said to have had over how and when work was to be completed, citing a requirement to use a particular email address, advice that she could not be a contractor for both the Respondent and another catalogue distribution company, that the Respondent knew her password to the system, and that she was directed to have a mobile number available to be contacted on. She also submits that the Respondent supplied tools and systems to be used and contends that the work could not be delegated to other people as they would need to access the system. Further, that while the hours of work were not set, the Applicant was advised the role was full-time in nature, and she received various instructions about onboarding of applicants recruited by the Area Representative.

1. The effect of the Personnel Contracting decision and another recent High Court decision in ZG Operations Australia Pty Ltd v Jamsek[4] was summarised in a recent Full Bench decision of the Commission in Waring v Hage Retail Pty Ltd:[5]

“[52] In two judgements delivered on 9 February 2022 the High Court of Australia pronounced on the law that applies in determining whether, absent a specific statutory rule, a person is an employee or contractor. In doing so, the Court reviewed past decisions of the Court (and other courts) and set out afresh relevant legal principles.

[53] In important respects the law as expressed by the High Court in Jamsek and Personnel Contracting has modified, if not replaced, former approaches. In particular, the past approach of the Commission (itself based on past court authority) as outlined in the leading full bench case of French Accent is, with some limited caveats, no longer good law.

[54] The High Court, via the combination of judgements in both Jamsek and Personnel Contracting, has largely rejected an approach whereby the relationship between parties across its life span is examined (including how the relationship operates in practice). The Court has stated that contractual terms and not performance, where those terms can be ascertained and where the contract is not a sham, will determine the true nature of the relationship. However, the Court has observed that the manner in which the relationship is worked in practice may be relevant for certain limited purposes, such as to find contractual terms where they cannot otherwise be ascertained or to determine the nature of any variation to agreed terms.

[55] Indicia (such as those identified in earlier cases in the Court) may be relevant but only insofar as the terms of the contract give voice to them. One approach, to be used as a guide, is to look at whether, under the contract, the worker is engaged to work in the business of another, though this may not necessarily be useful in all cases. The extent of a contractual right to control, as evident from the terms of the contract itself, remains a major signifier of an employment relationship. That an arrangement was brought about by the superior bargaining power of one party has no bearing on the meaning and effect of the contract.” (footnotes omitted and emphasis added)

1. Mrs Blyth’s contentions that she was an employee are based on how the parties conducted themselves, rather than on the rights and obligations set out in the contract, which is the approach required in light of the Personnel Contracting decision. In my view, the express terms and conditions in the agreement between the Applicant and the Respondent are significantly more consistent with a contracting rather than an employment relationship.

1. On the basis of the material presently before the Commission, I consider that Mrs Blyth has at best, a very weak claim to being found to be an employee and not a contractor. Consequently, the Applicant is likely to be found to be an independent contractor and not entitled to make an unfair dismissal application. This consideration does not favour a grant of further time.

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

1. This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this as a neutral consideration in this case.

Conclusion

1. The Commission can only grant an extension of time if it is satisfied that there are exceptional circumstances. None of the factors I need to consider weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case whether considered individually or together. As there are no exceptional circumstances, there is no basis to allow additional time for Mrs Blyth to make her application. This means that Mrs Blyth is not entitled to apply for an unfair dismissal remedy.

1. The application is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

G Blyth, Applicant.
C Watson for the Respondent.

Hearing details:

2022.
Melbourne (by video):
December 6.

[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[3] [2022] HCA 1; 96 ALJR 89.

[4] [2022] HCA 2; 96 ALJR 144.

[5] [2022] FWC 540 at [52]-[55].

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