Mario Alam Imedicine Pty Ltd

[2019] FWC 5867

[2019] FWC 5867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mario Alam
Imedicine Pty Ltd
(C2019/2297)

COMMISSIONER YILMAZ MELBOURNE, 30 AUGUST 2019

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

Introduction

[1] On 8 April 2019, Dr Mario Alam (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant entered an Independent Practitioner Agreement with Imedicine Pty Ltd t/as The Health Lodge (the Respondent) in 2017. The Applicant submits he commenced with the Respondent in February 2017. The Applicant submits he was dismissed on 13 February 2019 after four weeks’ notice. The application was filed with the Commission on 8 April 2019; 54 days after 13 February 2019.

[2] In the Applicant’s originating application, the Respondent’s legal name was stated as “Imedicine Pty Ltd t/as” which did not accurately reflect the actual name of the Respondent. On 24 June 2019, the parties agreed to amend the name of the Respondent in the application to Imedicine Pty Ltd t/as The Health Lodge.

[3] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 33 days after the 21-day statutory time limit expired.

[4] Leave to appear for the Respondent’s Representative was sought. Following consideration of the arguments, I permitted legal representation to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

Background

[5] The Applicant was a medical practitioner that entered an Independent Practitioner Agreement (the Agreement) with the Respondent. The Respondent is an integrative medical facility in Byron Bay providing multidisciplinary health care. The Agreement recognises that the medical practitioner is a self-employed professional operating out of the facility. The services provided to the practitioner from the facility includes access to a clinic/ treatment room, laundry, merchant facilities, public liability insurance, telephone, power, access to office equipment, administrative/reception staff and professional services including accountancy support and limited marketing. The facility collects the fee from patients in accordance with the Agreement, retains the clinic service charge as per the Agreement and pays the practitioner the balance of the collected patient fees on a fortnightly basis. The Agreement also stipulates that the clinic’s schedule of fees based on gross annual consultation income may be varied by consensus between the Directors of the facility.

[6] A condition of the Agreement is that the practitioner is to hold and show evidence of professional indemnity insurance for himself, and that the practitioner’s insurance shall indemnify the facility against any claims arising out of any relationship between the practitioner and the patient.

[7] The Agreement stipulates that it does not constitute an employment relationship and the Agreement may be terminated by either party by the giving of one months’ notice. Practitioners are entitled to take patient notes with them should they terminate the arrangement only after practising at the facility for more than two years, and this is conditional on the patients permitting the release of their information. The Agreement also includes terms relating to attendance at weekly meetings and conditions relating to when the practitioner may take annual leave.

Applicant’s submissions

[8] The Applicant submits that on 4 January 2019, the Respondent’s Clinic Manager wrote to the Applicant expressing concern that the Applicant had been adjusting his schedule without regard for the needs of the facility or the patients. 1 This letter was filed with the Applicant’s outline of argument. The letter states that Dr Alam is not prepared to “compromise and will work when he wants to work, and this is incongruent with the manner in which The Health Lodge works”2. The letter then clarifies the Respondent’s expectations and offers the Applicant a number of options; the first option was to commit to two days of work per week (9.00 am to 5.00 pm with an hour lunch and four weeks of annual leave), option two was one day of work per week (9.00 am to 5.00 pm with an hour lunch and two weeks of annual leave) or option three was to part ways.

[9] On 14 January 2019, the Applicant met with the Respondent’s two Directors and the Office Manager where he selected the option to work one day per week as contained in the letter of 4 January 2019.

[10] Two days after the meeting, the Applicant submits he received a letter dated 16 January 2019 terminating the Agreement and giving him two weeks’ notice. 3 The letter signed by Mr Simon DuBois, Clinical Director dated 16 January 2019 was provided in evidence by the Applicant.4 The letter thanks Dr Alam for his contribution and effort in getting the facility off the ground and states that it is best for The Health Lodge and patients that he finish up in two weeks, his last day being 31 January 2019. The letter also asks Dr Alam how he would like to finish up or if he wanted to finish earlier than 31 January 2019.

[11] The Applicant secured a further meeting with the Directors of the Respondent and two doctors from The Health Lodge on 23 January 2019. The Applicant submits he secured the meeting to resolve the outstanding issues between the parties. The Applicant provided a document to the Respondent following the meeting which summarised his understanding of the meeting (Meeting Summary). In the Meeting Summary, the Applicant sets out a number of requests from the Respondent, including four weeks’ notice as opposed to the two weeks initially provided to be consistent with the terms of the Agreement. The other requests from the Applicant relate to the Respondent addressing allegations which he disputes, issues pertaining to messaging to patients and staff, the days he would like to work leading up to the termination of the Agreement and offers to continue discussions for an ongoing relationship between the Applicant and the Respondent. 5 He requests a response to his requests by 31 January 2019.

[12] An email from Ms Reine DuBois, Director on 31 January 2019 states that the Respondent is happy to honour the four weeks’ notice period and his requested half day shifts during the notice period. The email confirms termination on 13 February 2019. The email states that Dr Alam is welcome to advise his patients that he is consolidating his clinic, moving to the Mullumbimby Clinic and pending patient permission he may take his patient records with him.

[13] The Applicant asserts that the procedure was unfair and there were inconsistencies in the messaging from management and the Directors (in particular Mr Simon and Ms Reine Dubois). Further he submits allegations were made relating to reasons for the termination which he disputes, that the termination of the relationship was discriminatory based on his family/ carer responsibilities, and his termination occurred after he exercised a workplace right by requesting a change to his hours of work due to personal reasons (including family and health reasons).

[14] The Applicant submitted two further pieces of correspondence he forwarded to the Respondent. On 5 February 2019 he emailed apologising for not attending a team BBQ, he welcomes the four weeks’ notice requested, makes mention of legal advice from the Commission (although this appears to be from A Whole New Approach who initially filed a Form F53 - Notice of Representation for the Applicant (Form F53)) and requests further action to resolve the message to the team at The Health Lodge regarding his departure. The final email from the Applicant to the Respondent confirms the messaging he understands will be passed on to the team at the meeting scheduled for 15 February 2019. He concludes by asking whether the Respondent does not require him at the meeting.

[15] The Applicant contends that the contraventions of the Act by the Respondent relate to s.340 dealing with protection of workplace rights and s. 351 which deals with discrimination. 6

[16] During the hearing the Applicant confirmed that he was contracted by the Respondent to provide services as a sub-contractor. 7 He submits that his patients were in effect patients of the Respondent’s facility and the way his contract was terminated caused him financial and emotional hardship.8 He submits he is entitled to protection pursuant to the general protections provisions, and the main reason for the termination of the Agreement was due to his inability to make himself available because of a child custody matter and his mental health. It was for those reasons he requested to alter his hours of work and this he submits is his workplace right.

[17] The Applicant disputes the Respondent’s claim that he is not a sub-contractor as he was contracted to provide services to the Respondent rather than to the patients, as the Respondent placed controls on his referral of patients to either the other centre where he practices or to the service where he alleges he is engaged as an employee. 9

[18] The Applicant states the reasons for the delay in meeting the statutory 21-day time limit for the general protections application is because he was stressed and shocked as a result of his unexpected dismissal, combined with personal stressors involving a relationship breakdown and a child custody matter, which he claims the Respondent was aware of. 10 He also claims the above matters were aggravated by a potential diagnosis of dyslexia.11

[19] The Applicant had lodged an unfair dismissal claim within 21 days of the termination of the Agreement but withdrew the matter before filing this general protection claim. The Applicant submits that he withdrew the unfair dismissal claim after he was informed by the Respondent’s legal representative that he was not an employee and therefore the Form F2 was incorrect to file. 12

Respondent’s submissions

[20] The Respondent submits the Applicant is neither an employee nor contractor and was therefore not “dismissed”. 13 The Respondent submits the Applicant used the services and facilities of the Respondent as a general practitioner and the arrangement between the parties was validly terminated.

[21] The Respondent disputes that the Applicant is a person covered by the general protections provisions.

[22] The Respondent submits that given the previous application for unfair dismissal, that this current application is “vexatious, designed to put the Respondent to unnecessary inconvenience and costs and without any merit whatsoever.” 14

[23] The Respondent denies any discrimination against the Applicant, and submits that in any event, ss. 340 and 351 does not apply as the Applicant did not have a workplace right and was not an employee.

[24] The Respondent’s legal representative wrote to the Applicant following the filing of the unfair dismissal claim. 15 The Respondent filed this letter with their Form F8A to support their position that an employment relationship did not exist. The letter states that the application for unfair dismissal is outside the jurisdiction of the Commission, and details the facts and circumstances on which it relies to establish that there is no employment relationship.

Consideration

[25] On 24 June 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[26] General protections applications involving dismissal must be made within 21 days of the dismissal taking effect. 16

[27] However, s.366(2) of the Act permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[28] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 17 (Nulty) where it was held that:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 18

[29] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[30] The general protection involving dismissal application was lodged with the Commission on 8 April 2019.

[31] The Applicant contends that the application was not out of time because a Form F2 – application for an unfair dismissal remedy was submitted within 21 days of the alleged “dismissal”. In addition, the Applicant submits that the “stress and shock” 19 related to the alleged dismissal significantly impacted his personal life and greatly exacerbated other personal stressors he was dealing with including a breakdown in a relationship and a child custody matter. The Applicant claims the Respondent was aware of his personal circumstances. The Applicant submits he sought a psychiatric review in respect to the potential diagnosis of dyslexia; however, he posits that the dyslexia contributed to the filing of the wrong application in the first instance, which was subsequently corrected.

[32] The Commission’s records indicate that the Applicant’s unfair dismissal application was lodged on 6 March 2019 and subsequently withdrawn on 1 April 2019.

[33] The general protections application was signed on 2 April 2019 but filed with the Commission on 8 April 2019.

[34] The Respondent’s legal representative wrote to the Applicant on 29 March 2019 informing him of their representation and that they would attend the conciliation conference for the unfair dismissal matter that was scheduled for 4 April 2019. The letter 20 goes on to say that the application is outside the Commission’s jurisdiction and therefore has no genuine or reasonable prospect of success. The letter also states that legal costs incurred by the Respondent are likely to be significant should the matter proceed to conciliation or hearing and that consequently, the Respondent would be making an application for costs against the Applicant. It was strongly recommended that the Applicant withdraw his application.

[35] The Applicant submits he realised that his application was wrongly filed and withdrew the unfair dismissal claim and, in its stead, filed a general protections claim involving dismissal. The Applicant did submit he did try to seek legal advice and contacted a number of no-win no-fee advisers but was unable to obtain satisfactory advice due to his limited funds. However, a Form F53 was filed by A Whole New Approach on 14 May 2019, but a subsequent Form F54 - Notice of Representative Ceasing to Act was filed on 17 May 2019. The Applicant explained that he sought advice from A Whole New Approach but did not instruct them to file a Form F53, therefore it was withdrawn on his insistence. 21

[36] In considering the reason for the delay I am required to consider all of the relevant matters. Should I accept that the Applicant made an error in filing an unfair dismissal claim, I also need to take into account the period of inaction of the Applicant in filing the general protection claim.

[37] The Applicant makes reference to his mental state following the unexpected dismissal. He submits he was shocked and stressed and this also impacted his private life. It can be understood that the Applicant would feel aggrieved if his Agreement with the Respondent was terminated. The Applicant submits he continued to communicate with the Respondent in the hope the matter could be resolved amicably between them, while at the same time he was dealing with his personal circumstances, including the pressure from reduced income. The Applicant states that the shock and stress arising out of the termination of the Agreement added to his personal circumstances.

[38] The Applicant filed with his submissions a review by a Consultant Psychiatrist which he voluntarily went to see. The review describes the Applicant as he presented for the interview, his personal circumstances in his life, including an assessment of his intellectual and emotional state. The Applicant refers to his suspected dyslexia, and the Consultant Psychiatrist referred the Applicant on for testing. There is nothing in the review that supports the contention that the Applicant was in a cognitive state where he could not make informed decisions. Further, during the hearing I found the Applicant to be emotionally stable, articulate and well considered while responding to questions and making submissions. Further there was no evidence of an impaired cognitive ability to file a claim within the statutory time frame.

[39] The Applicant did dispute the termination of the Agreement and made an application in an attempt to resolve the issues between the parties. The unfair dismissal claim was filed within the statutory time frame. On receiving the correspondence from the Respondent’s legal adviser the Applicant withdrew his unfair dismissal claim prior to the scheduled conciliation conference, and filed a general protection claim a week after withdrawing the initial claim.

[40] While I accept the Applicant would have been distressed by the termination of his Agreement and no doubt his personal circumstances combined with the financial impact the termination of the Agreement would have added to his personal distress and confusion, I do not consider this weighs in favour of the Applicant for the granting of an extension of time. However, I do accept that the Applicant had filed a wrong application within the required time, and this may weigh somewhat in favour of the Applicant. Nevertheless, I am not satisfied with the explanation for the week of inaction by the Applicant after he withdrew his unfair dismissal application.

[41] Relevant to my consideration is the question whether the Applicant has subsequently correctly filed a general protections claim. During the hearing for the extension of time, parties made submissions concerning whether the Applicant was a contractor or neither an employee or contractor. I have no doubt the Applicant was confused relating to the appropriate option for filing an application for relief regarding the termination of his Agreement to render services to The Health Lodge. Despite this I am not satisfied that the Applicant demonstrated exceptional circumstances regarding this consideration to warrant an extension of time. Overall, I do not consider the reasons given for the delay are exceptional circumstances to weigh in the Applicant’s favour.

Steps taken to dispute the termination

[42] It is not contentious that the Applicant challenged the decision of the Respondent to terminate the Agreement between them.

[43] The Respondent disputes that the Applicant has jurisdiction to advance his claim pursuant to the general protections provisions of the Act on the basis that the Applicant was not an employee or sub-contractor and that the nature of dispute between the parties could more accurately be characterised as a commercial arrangement.

[44] An independent contractor is captured under the general protections provisions of the Act. The Applicant himself in correspondence to the Respondent indicates he was engaged as a contractor. The Respondent in correspondence dated 13 February 2019 to the Applicant states that the Applicant as with all practitioners at The Health Lodge was “always engaged as an independent contractor” 22.

[45] Despite the conflicting submissions and evidence (such as the tax invoices and Independent Practitioner Agreement) concerning whether the Applicant is a contractor, the Commission cannot dismiss the s.365 application on the basis of a finding that the Applicant was not dismissed. 23

[46] Taking into consideration the evidence relating to the Applicant’s actions to dispute the alleged termination, I consider this consideration weighs in the Applicant’s favour.

Prejudice to the employer

[47] The Applicant asserts that granting an extension of time will not cause the Respondent disadvantage or unfairness because he had initially filed an unfair dismissal claim within the statutory 21 day time frame. The Respondent is aware of the Applicant’s concerns regarding the manner in which his Agreement was terminated and his ongoing concerns relating to the messaging to staff and patients. The Applicant articulated his requests relating to the termination of the Agreement therefore it would have been no surprise to the Respondent that the Applicant would continue to pursue a suitable outcome.

[48] No further submissions were made relating to this consideration by the Applicant. However, the Respondent submits that the Applicant had already put the Respondent to considerable time and expense in relation to both the unfair dismissal claim and now the general protections claim. The Respondent also raises the lack of evidence to support his general protections claim.

[49] I do accept that the application has inconvenienced the Respondent in relation to time and cost, particularly as the Applicant had filed an unfair dismissal claim, and the current matter has been filed in almost identical terms. However, the mere inconvenience is not sufficient to dismiss an application or refuse the granting of an extension of time.

[50] I consider this consideration to be neutral.

Merits of the application

[51] The Applicant submits the reason for the termination was because he could not work a third day as requested by the Respondent, even though he was originally engaged to work two days. The Applicant submits he worked the third day as a courtesy to the Respondent and this was at his own disadvantage. He alleges that the Respondent knew of his personal circumstances and when he requested the change, which he also alleges is consistent with his contract, the Respondent subsequently terminated his Agreement which regulates his hours of work at The Health Lodge. Further, the Applicant disputes the allegations relating to the “reasons” given for the termination advanced by the Respondent.

[52] The Applicant made submissions during the hearing regarding merit and the Respondent did not. However, the Respondent in written submissions contended that the Applicant was neither an employee nor contractor covered by the general protections provisions of the Act.

[53] Given the conflicting evidence regarding the status of the Applicant as a contractor, should the matter be pursued, the Applicant would firstly be required to establish jurisdiction, before he could prosecute his merit argument.

[54] I make no finding concerning merit; while the submissions may be arguable, the submissions were not tested. I also make no finding on jurisdiction based on whether the Applicant is an employee or contractor. I can only determine matters relating to extension of time. Therefore, I consider this consideration to be neutral.

Fairness between the person and other persons in a like position

[55] In written and oral submissions both the Applicant and Respondent did not provide sufficient material addressing this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[56] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[57] On balance of all the considerations, I am not persuaded that the Applicant has substantiated exceptional circumstances for an extension of time.

[58] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application under s.365 is dismissed.

[59] An order to this effect will be published separately in PR711768.

COMMISSIONER

Appearances:

Dr M Alam for himself

Mr A Van Kempen for the Respondent

Hearing details:

2019

Melbourne, Brisbane

24 June 2019 (telephone hearing)

Printed by authority of the Commonwealth Government Printer

<PR711617>

 1   Applicant’s Outline of Argument at Q1h.

 2   THL Considerations Letter of 4 January 2019.

 3   Termination of Agreement Letter of 16 January 2019.

 4   Ibid.

 5   Meeting Summary filed 17 May 2019.

 6   Applicant’s Form F8 at Q3.2 and oral submissions.

 7   Applicant’s oral submissions.

 8   Ibid.

 9   Ibid.

 10   Applicant’s Form F8 at Q1.4.

 11   Ibid.

 12   Applicant’s oral submissions referring to the Letter from BVK Solicitors Attorneys of 29 March 2019.

 13   Respondent’s Form F8A at Q2.2.

 14   Ibid at Q5.1.

 15   Letter from BVK Solicitors Attorneys of 29 March 2019 filed with Form F8A.

 16   Fair Work Act 2009 (Cth) s.366(1)(a).

 17   [2011] FWAFB 975.

 18 Ibid at [13].

 19   Applicant’s Form F8 at Q1.4.

 20   Letter from BVK Solicitors Attorneys of 29 March 2019 filed with Form F8A.

 21   Applicant’s oral submissions.

 22   Email from Reine DuBois of 13 February 2019 in reply to Dr Mario Alam’s email dated 31 January 2019.

 23   Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Vido Digital[2013] FWCFB 6321.