Mr Adrian Dawson v Footsure Pty Ltd T/A Carillion City Podiatry

[2014] FWC 3341

[2014] FWC 3341

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Adrian Dawson
v
Footsure Pty Ltd T/A Carillion City Podiatry
(U2014/529)

COMMISSIONER CLOGHAN PERTH, 22 MAY 2014

Application for relief from unfair dismissal.

[1] On 22 February 2014, Mr Adrian Dawson (Mr Dawson or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Footsure Pty Ltd T/A Carillion City Podiatry (Employer).

[2] Mr Dawson alleges that he was dismissed by Footsure Pty Ltd on 29 January 2014.

[3] The application was made pursuant to s.394 of the Fair Work Act (FW Act).

[4] The application was not resolved at conciliation and was referred to me for arbitration on 26 March 2014.

[5] In its response to the application, the Employer objects to Mr Dawson’s application on three (3) jurisdictional grounds and they are:

(a) the application was lodged more than 21 days after the dismissal took effect;

(b) the Applicant is not an employee; and in the alternative,

(c) the Employer is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

[6] It is not necessary for the Commission to consider the jurisdictional objections in paragraph [5](b) and (c), unless it is satisfied that there are exceptional circumstances to allow the application to be lodged beyond the statutory timeline of 21 days after the dismissal took effect.

[7] To assist in the resolution of the Employer’s jurisdictional objection I issued procedural directions on 1 April 2014 and advised the parties that the matter would be determined following written submissions.

[8] Having received the written submissions, this is my decision and reasons for decision on whether I am satisfied that there are exceptional circumstances to allow the application to be lodged beyond the statutory timeline of 21 days after the dismissal took effect in accordance with ss.394(2) and (3) of the FW Act.

RELEVANT LEGISLATIVE FRAMEWORK

[9] The relevant legislative provisions are as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

RELEVANT BACKGROUND

[10] Mr Dawson commenced working for the Employer after completing his university degree in December 2011. Mr Dawson was advised on commencement that he would be engaged as a independent contractor because that was the standard arrangement. Mr Dawson “now has advice that I am likely an employee and have been unfairly dismissed”. The Employer asserts that Mr Dawson was, and has been, an independent contractor.

[11] The Employer and Mr Dawson entered into various arrangements relating to how tax, GST, superannuation, orthotic devices and labour were to be treated.

[12] On Friday 24 January 2014, the Employer provided the Applicant with a “Podiatry Contractor Agreement”. Mr Dawson was unwilling to sign the agreement until he received independent advice.

[13] Monday 27 January 2014 was a public holiday in Western Australia.

[14] On 28 January 2014, Mr Dawson advised the Employer by text message that he was unwell and unable to work.

[15] I note that the Employer states that Mr Dawson worked for Ben Morrells Podiatry on 28 January 2014. In response, Mr Dawson states, “...there is nothing to support this statement and I refute this suggestion...”. As a fact, this issue remains unresolved.

[16] Mr Dawson asserts that from 28 January 2014, “I was unwell for approximately one week”.

[17] On 29 January 2014, Mr Dawson received a text message from the Employer’s representative that he “would not be requiring my services in the future”.

[18] On 22 February 2014, the Applicant lodged an unfair dismissal application with the Commission.

APPLICANT’S SUBMISSION

[19] Mr Dawson submits that the Commission should be satisfied that there are exceptional circumstances to allow the application to be filed beyond the statutory timeline of 21 days taking into account the following:

● he was unable to attend work from 28 January 2014, “which means the earliest that I could begin to seek advice on the matter was 4 February 2014”;

● the first time he became aware of the dismissal was on 29 January 2014 at 6:42 pm, “as this is after the close of business on that [day], I believe that the Commission would consider the effective date of dismissal would in fact be the next day...”;

● his “illness hindered my ability to obtain knowledge that I had the opportunity to seek the assistance of the Commission”;

● that he was short of funds. Consequently, he could not afford to approach legal counsel and had to rely on friends, colleagues and other professional resources;

● “verifying that I could in fact access the Commission took me approximately one week”; and

● having verified that he could access the Commission, this left Mr Dawson just nine days in which to seek appropriate advice and make informed decisions as to what my options and choices were. This period of time included a weekend.

[20] I now turn to the relevant legislative provisions which relate to Mr Dawson’s application.

CONSIDERATION

[21] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

“... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” R v Kelly (Edward) [2000] 1 QB 198 at 208.

[22] The Australian Concise Oxford Dictionary defines “exceptional” as “forming an exception, unusual”. Further, “exception” is defined as “something that does not follow the rule”. The term “exceptional” requires a qualitative examination of the existence of something against the norm.

[23] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are “exceptional circumstances”.

[24] The burden lies with Mr Dawson to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I shall now consider those circumstances set out by the Applicant within the legislative provisions.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[25] In summary, Mr Dawson’s reasons for delay in filing the application are:

● he was sick;
● he could not afford legal advice;
● it took a week to verify that he could access the Commission; and
● having verified that he could access the Commission, the shortness of time to make an informed decision regarding his options.

[26] Firstly, being sick is not an exceptional circumstance - it is a common occurrence experienced in daily life. The Applicant does not adduce any documentation, or make submission, as to the illness which “hindered” his ability as to whether he could seek the assistance of the Commission. I note that Mr Dawson states that he was unable to attend work - he does not state that he was so ill that he could not make enquiries regarding his employment status and alleged unfair dismissal.

[27] Even if Mr Dawson was so incapacitated by illness that he was unable to make his own enquiries, he does not address, in his submission, the obvious question as to whether or not he had the ability to ask others to enquire on his behalf.

[28] If I was to accept the Applicant’s submission, it would be tantamount to accepting that any applicant who states that they were “unwell for approximately one week” as a sufficient condition to meet the definition of exceptional circumstances. This would lead to applicants self determining exceptional circumstances. I do not consider this is what Parliament intended when s.394(3) of the FW Act was enacted.

[29] Secondly, not having funds to employ legal counsel is not exceptional circumstances. Unfortunately, it is a circumstance experienced by many applicants.

[30] Thirdly, it is a universal circumstance that it takes time to verify something, and having done so, take action. The second factor of taking action follows from the first action of verification. However, the timeliness is a matter for an applicant bearing in mind the parameters of the statutory provisions.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[31] Mr Dawson became aware of the dismissal at 6:42 pm on 29 January 2014.

[32] I do not find that the Applicant became aware of his dismissal on the following day because it was received after “business hours”.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[33] The Applicant submits that he made two written requests to the Employer regarding payments owed as a result of his working arrangements with the Employer. While I have taken this criterion into account, I am not convinced that this was an action to dispute his dismissal; it was action to recover monies that were allegedly owed.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[34] The Applicant asserts that he considers there is no prejudice to the Employer as a consequence of this application being filed beyond the statutory timeline. The Employer responds to the extent that there is a prejudice if an extension of time is granted. I note that the absence of prejudice is insufficient to make out a case for extension of time to allow the application to be lodged beyond the statutory timeline.

Paragraph 394(3)(e) - the merits of the application

[35] The merits of this application can only be considered after this jurisdictional objection and the remaining jurisdictional objections in paragraph [5] have been considered. For this reason, I have adopted a neutral position with respect to this criterion.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[36] This criterion was not addressed by either party. To the extent it is relevant, I have adopted a neutral position with respect to this criterion.

CONCLUSION

[37] In conclusion, for the reasons I have set out above, I am not satisfied that exceptional circumstances existed which led to a delay in Mr Dawson filing his application. Accordingly, the application must be dismissed. An order to this effect will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 16 April and 12 May 2014.

Respondent: 7 May 2014.

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