Karly Jillian Shaw v Taradale House Estate
[2022] FWC 492
| [2022] FWC 492 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karly Jillian Shaw
v
Taradale House Estate
(U2022/1659)
| COMMISSIONER O’NEILL | MELBOURNE, 7 MARCH 2022 |
Application for an unfair dismissal remedy – extension of time
On 8 February 2022, Ms Karly Shaw made an application to the Commission for an unfair dismissal remedy. She contends that she was dismissed by the Respondent approximately 19 months earlier, on or around 5 June 2020.
Section 394(2) of the Fair Work Act 2009 (Cth) (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).
In order for the application to proceed, Ms Shaw requires the Commission grant a further period of time within which to bring her application.
The question of whether to grant additional time was dealt with at a hearing on 4 March 2022, at which the Applicant gave oral evidence supplementing documentation, including a witness statement of the Applicant, that she had previously submitted. During the hearing it became clear that one page of the Applicant’s witness statement had inadvertently not been provided and the Applicant emailed the missing page to my chambers shortly after the hearing. All the material provided by the Applicant has been taken into consideration.
Extension of time
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]
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
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]
The Applicant contends that she was dismissed on 5 June 2020 at the end of a “heated yelling match” with her employer, Mr Righetti, which ended with him telling her that she was fired. In response, the Applicant said that she quit.
Ms Shaw’s explanation is that the delay in making her application came about from a combination of factors, including that:
· She spent the first 19 days after the incident expecting the Respondent to contact her and ask her to return to work;
· She was uncertain about where she stood and whether she remained employed, partly because in a subsequent conversation with the Respondent on or around the day after the incident, she contends that Mr Righetti said that she had to work on 7 June 2020 as there was no one else, and otherwise he wouldn’t pay her invoices. He also mentioned in a conversation that she may still work at weddings;
· Ultimately, she came to realise at some unspecified point in time that she was no longer employed because the Respondent never did call her, nor were her invoices paid;
· On 26 June 2020, the Respondent forwarded her a message he had sent to a cleaning contractor providing the Applicant and her mother a glowing reference and advising the Applicant to contact the cleaning contractor for work. The Applicant did so, and worked for one day for the cleaning contractor before concluding that it was “just the same job for less money but 2 people to answer to”;
· Months passed and the Respondent did not pay the full amounts claimed to be owed to the Applicant;
· She spent months in bed after being fired/quitting, apart from around 1-2 weeks;
· The Applicant developed severe major depressive disorder, anxiety, became withdrawn/detached, suffered disillusionment and psychosis, was diagnosed with schizophrenia and other conditions, and was hospitalised for a few weeks in around January 2021;
· Her financial position became more pressing having exhausted her savings and she had been experiencing highly unstable accommodation arrangements; and
· She was unaware of her rights and uncertain about whether she was an independent contractor or an employee until she received some information from a person at JobWatch on 7 or 8 February 2022.
I am not satisfied that the Applicant has provided an acceptable explanation for the very long delay in lodging her application.
Ms Shaw may have been very unwell for a significant portion of the 19 months that has elapsed between when she finished working for the Respondent in June 2020 and when she made her application in February 2022. However, there is no evidence that she was rendered incapable of making an application either within or after the prescribed time limit. In relation to the Applicant’s health and mental state, the only medical evidence provided to support an extension of time being granted is a letter from a consultant psychiatrist arising from a consultation on 4 June 2021. The letter is dated almost a year after the Applicant contends that she was unfairly dismissed, and does not establish that the Applicant was incapable, because of the state of her health, to make an application at an earlier date. Rather, it reports that she had a sustained improvement in her mental health. The Applicant contended that she had experienced a range of difficulties in collecting her medical records, and while that may be the case, I must consider the matter on the basis of the evidence before the Commission.
Even if one was to accept that she was incapable of making an application prior to this date, her application was not made for a further 7-month period, and no reasonable explanation has been provided for this further delay.
In relation to the Applicant’s explanation that she was uncertain about her situation, and whether she was employed or not, on her own evidence, this period of uncertainty when she was anticipating a call from the Respondent, lasted 19 days. This was within the 21-day period. Further, the Applicant was well enough to commence working and perform largely the same work for the cleaning contractor who took over from the Applicant, a short time after the purported dismissal.
Other than her state of health, the delay is attributed largely to the Applicant’s lack of awareness of her rights and growing financial pressure, however neither of these factors are unusual or uncommon. There is no reasonable explanation as to why the Applicant was unable to make enquiries, seek information or advice at a much earlier date.
This consideration weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant contends that she was not aware at the time of the incident on 5 June 2020 that she was dismissed. Whilst she recognised that her work cleaning had ended, she believed that she was still employed for events, such as weddings. She says that she gradually realised that she was no longer employed after a period of time where there was no contact from the Respondent, nor any payments made.
Assuming this to be the case, given the very long delay in lodging an application, this is at best a neutral consideration in this case.
Any action taken by the person to dispute the dismissal
Other than making this application, there is no evidence of any other action taken to dispute the dismissal. I consider this a neutral consideration in this case.
Prejudice to the employer
There is no evidence of any particular prejudice to the Respondent, however the long delay gives rise to a general presumption of prejudice. The Applicant contends there is no particular prejudice to the Respondent. I have treated this as a neutral consideration.
Merits of the application
As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
A key issue in this case will be whether the Applicant was an employee or an independent contractor. It is not possible to form a clear view at this point in time, however on the limited material, Ms Shaw will face significant challenges in establishing that she was an employee and not an independent contractor.
In the circumstances, I treat the merits as a neutral consideration.
Fairness as between the person and other persons in a similar position
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 to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, no additional time can be allowed for Ms Shaw to make her application. This means that Ms Shaw is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
K Shaw, Applicant.
A Righetti for the Respondent.
Hearing details:
2022.
Melbourne (by video):
March 4.
[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].
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