Ms Alison Smith v The Music Group Pty Ltd, Mr Daniel Olesh
[2024] FWC 2278
•30 AUGUST 2024
| [2024] FWC 2278 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Alison Smith
v
The Music Group Pty Ltd, Mr Daniel Olesh
(C2024/4243)
| COMMISSIONER LEE | MELBOURNE, 30 AUGUST 2024 |
Application to deal with contraventions involving dismissal-application lodged 500 days out of time-not satisfied exceptional circumstances-application dismissed
Ms Alison Smith (the Applicant) asserts that she commenced employment with The Music Group Pty Ltd (the Respondent), on or about 18 June 2022 as a sound engineer.
The Respondent submits that the Applicant was not dismissed within the meaning of the Fair Work Act2009 (Cth) (the Act) as there was no employment relationship because the Applicant was engaged as a contractor. The Respondent submits that she was not offered work as a contractor after 14 January 2023 and her engagement as a contractor ceased at that point.
The Applicant has made an application to deal with contraventions involving dismissal under s.365 of the Act. That application was lodged on 22 June 2024.
Application was filed outside the statutory timeframe
Applications to deal with contraventions involving dismissal must be made within 21 days after the dismissal took effect.
The Applicant stated at the hearing that the termination took effect on 18 January 2023. The Respondent asserts that there is no termination as the Applicant was a contractor who last performed work for them on 14 January 2023.
For the purposes of making a decision taking pursuant to s.366(2), I will proceed on the assumption that the termination of employment took effect on the date asserted by the Applicant, that is 18 January 2023.
Based on a termination date of 18 January 2023, the application to deal with contraventions involving dismissal should have been lodged by no later than 8 February 2023.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 500 days or 16 months and 14 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application to deal with contraventions involving dismissal may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.366(2) of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
the reason for the delay,
any action taken by the Applicant to dispute the dismissal,
prejudice to the Respondent including prejudice caused by the delay,
the merits of the application; and
fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]
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 or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account s.366(2) of the Act that there are exceptional circumstances.
I now consider these matters in the context of the Application.
Reason for the delay
The Act does not specify what reason for delay might tell in favour of 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.[3]
The reasons given by the Applicant for the delay include:
Health issues and illness: The Applicant states that she was dealing with significant challenges, including a worsening of her chronic vestibular migraines, which were exacerbated by stress and emotional turmoil. She states that she was also very unwell after contracting COVID in November 2022 and was still suffering the lingering effects for months afterwards, including a loss of taste, smell and hearing, sinus and lung inflammation requiring prolonged steroid treatments and ongoing brain fog and severe fatigue. The Applicant states that she retained this loss of her sense of smell and taste for 2-3 months and also needed a Ventolin, steroid inhalers and suffered extreme fatigue after any activity for months after.[4] It is noted she is still having follow up medical appointments and considering having surgery for the damage done to her ears and sinuses. The Applicant submitted that these health issues were severe enough to impair her ability to manage daily tasks and responsibilities, let alone navigate the complexities of a legal claim.
Emotional and Psychological Distress: The psychological and emotional abuse the Applicant alleges she experienced from Mr Olesh included manipulation, deceit, and coercive control, which she claims significantly impacted her mental health. with the applicant refers to having symptoms of anxiety, depression, and PTSD. The Applicant states that she has spoken to her doctor and specialist trauma/crisis counsellors and is waiting on further specialist trauma psychology appointments. She submits that this state of mental health distress made it extremely difficult to undertake the additional stress of a legal process.
Financial Dependence and Manipulation: The Applicant alleges that Mr Olesh’s manipulation extended into the realm of financial control, where promises of career opportunities and financial stability were used as leverage against her when she was in a very vulnerable position. The Applicant claims that at the time of her alleged dismissal, the abrupt loss of income and the broken promises of financial security left her in a difficult financial position, further complicating her ability to seek legal recourse.
Isolation and Lack of Support: It is submitted that the alleged isolation tactics used by Mr Olesh, both socially and professionally, meant that at the time of her alleged dismissal, she lacked a support network she could trust. The Applicant submits that Mr Olesh undermined her relationships with her close friends and professional colleagues and manipulated them into believing that she was being crazy and acting out of unreasonable anger, lying and trying to destroy him. She states this isolation was paralysing, making it difficult to seek out and receive the necessary advice or support to pursue seeking help from the Commission.
Safety Concerns: The Applicant asserts that the alleged controlling and coercive behaviour by Mr Olesh caused concerns for her personal safety and that of her pet cats and belongings until he could be legally excluded from their previously shared residence. The Applicant claims that the fear of retaliation or further abuse from Mr Olesh or associated individuals within the industry deterred her from taking action that could potentially escalate the situation. It is noted that on 27 June 2024, a Domestic and Family Violence Order was granted against Mr Olesh.[5]
Lack of Information and Resources: The Applicant claims that the overwhelming nature of her circumstances, compounded by health issues and financial and emotional distress, have impeded her ability to access information about her rights or the procedures involved in seeking help from the Commission.[6]
The Respondent generally disputes all the allegations made by the Applicant, including those directed at Mr. Olesh as “unfounded, outrageous and offensive to [their] reputation.”[7]
Taking into account the Applicant’s reasons for the extensive delay of 500 days, I am not satisfied that there is an acceptable reason for the delay.
The Applicant contracted COVID in November 2022 and suffered the effects for months thereafter. However, she has not provided any medical evidence as to the actual effects. In any event, the purported employment ended some months after the Applicant contracted COVID, yet the Applicant has taken more than 16 months to lodge the Application. I am not satisfied that a satisfactory explanation for the delay.
In relation to the emotional and psychological distress suffered by the Applicant. There is no medical evidence supporting the claim that the psychological condition of the Applicant was such that it precluded her from making an application within the 21 days or within the significant period of time that follows.
The financial position of the Applicant after termination is not an unusual circumstance and this is not an acceptable reason for the extensive delay.
There are serious allegations made as to the control and coercive behaviour that are made against Mr Olesh and the Applicant claims she was concerned for her personal safety. Mr. Olesh vigorously disputes the claims made by the Applicant. Having considered the evidence on this point, there is insufficient evidence to satisfy me that this was a reason that the Applicant did not file an application until 500 days after the purported dismissal.
As to the claimed lack of information and resources, a lack of knowledge as to the timeframe for lodging an application is not an acceptable reason and I find that to be the case here. Further, there is significant information available from the Fair Work Commission and the Fair Work Ombudsman as to how to lodge an application. I am not satisfied that this was an acceptable reason for the delay.
Since being dismissed, the Applicant has been working intermittently as a sound engineer over the 500-day period including work at the Antipodes Festival on 25 February 2023 and the Frankson Arts Centre on 1 March 2023. The Applicant has been working intermittently from that time up until now.[8] In the circumstances, as the Applicant has been capable of working during this period there is not a satisfactory explanation as to why she could not lodge an application during that period.
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
Action taken by the Applicant to dispute her dismissal
Turning to the next question of the action taken by the Applicant to dispute her dismissal. At the hearing the Applicant asserted she had discussed the dismissal with Mr Olesh and he accepted that he was responsible for it, and this gave the Applicant some hope the matter would “…be resolved”[9]. While Mr Olesh was not her employer, I accept that this represents some sort of attempt to dispute the dismissal though aspects of the Applicant’s actions seem connected to the personal relationship.
In the circumstances, that is a matter that weighs slightly in favour of the Applicant.
Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.
The Respondent did not make any submission on this point. The Applicant made no submissions that were particularly relevant to this point at the hearing. However, the delay in lodging this application is an extremely long delay. It has been determined that a long delay gives rise ‘to a general presumption of prejudice.’[10]
I am satisfied that the long delay in this matter gives rise to a general presumption of prejudice.
In the circumstances, that is a matter that weighs against the Applicant.
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 into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
The Respondent disputes that the Applicant was an employee, asserting that she was a contractor who was engaged to do specific work from 9 September 2022 to 14 January 2024 and that she was paid on presentation of invoices for work. The Applicant accepts that she was paid on the basis of presentation of invoices.
The Applicant claims she was an employee and was dismissed in breach of s.351(1) of the Act as she was subject to family and domestic violence.
The matter involves significant contested facts. I am not in a position to form a view as to the strength or weakness of the Applicant’s case. Certainly, if she was a contractor the case would fail on a jurisdictional basis. If an employee, the matter would turn on findings of vigorously contested facts.
It seems to me that her claim is, on a preliminary assessment basis not without merit but I am not in a position to say it is of such merit that it would weigh in the Applicant’s favour.
In the circumstances the merits are a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring a general protections application involving dismissal are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks to make an application for contraventions involving dismissal must make the application within 21 days after the dismissal takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have said, the consideration of the reason for the delay and prejudice to the employer given the extraordinary long delay weigh against the Applicant. The consideration of action taken to dispute the dismissal weighs slightly in the Applicant’s favour. Taking into account all these factors I am not satisfied that there are exceptional circumstances.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application to deal with contraventions involving dismissal made by the Applicant is dismissed. An order[11] to that effect will separately be issued.
COMMISSIONER
Appearances:
Ms A Smith, the Applicant
Mr D Olesh, the first Respondent
Mr J Tyrell, for the second Respondent
Mrs L Tyrell, for the second Respondent
Hearing details:
26 August 2024.
Microsoft Teams.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[4] Digital Court Book at page 20.
[5] Digital Court Book at page 32.
[6] Digital Court Book at pages 5-6.
[7] Ibid at page 52.
[8] PN69-74.
[9] PN86.
[10] Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), [(1996) 186 CLR 541, at p. 556].
[11] PR778758.
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