Ms Cindy-Louise Davis v Bottoms Up Colonics Pty Ltd
[2023] FWC 1749
•18 JULY 2023
| [2023] FWC 1749 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Cindy-Louise Davis
v
Bottoms Up Colonics Pty Ltd
(U2023/4536)
| COMMISSIONER DURHAM | BRISBANE, 18 JULY 2023 |
Application for an unfair dismissal remedy – whether to extend time – application dismissed
On 24 May 2023 Ms Cindy-Louise Davis (Ms Davis/the Applicant) made an application to the Commission for an unfair dismissal remedy. She contends that she was officially dismissed by Bottoms Up Colonics Pty Ltd (the Respondent) on 2 May 2023.
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 section 394(3). As the Applicant lodged her application on 24 May 2023, and the date of the dismissal was 2 May 2023, she was one (1) day out of time.
In order for the application to proceed, Ms Davis requires the Commission to 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 Determinative Conference on 10 July 2023. The Applicant and the Respondent gave oral evidence and sought that the material they had already filed be received into evidence.
The entirety of the digital court book was received into evidence, with appropriate weight being given to all evidence after an assessment of its relevance and its character (e.g. hearsay, opinion/submission).
All the material relied upon by both the Applicant and the Respondent 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 the Delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas 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
Ms Davis raised several factors to explain the delay in lodging her application:
that she experienced debilitating anxiety and depression due to the dismissal and her financial situation; and
that she experienced delays in accessing legal advice.
With respect to the first argument, Ms Davis provided a medical certificate which certified that:
“This is to certify that Ms Cindy Davis (D.O.B 15.03.1966) has known history of anxiety and depression and I was reported that she is in a lot of stress recently due to work related stress, resulting in financial crisis and loss of wages.”
I note this certificate did not indicate any incapacity for work or other activity. It also does not reference any presenting medical condition or any prescribed medication.
No further explanation was provided with respect to the Applicant’s capacity during the 21 days after 2 May 2023, nor any evidence to suggest that her condition prevented her from lodging her application within time.
It is further noted that the medical certificate provided was dated 24 May 2023, which is the same date that Ms Davis filed her application. When questioned during the determinative conference, Ms Davis said that she had seen her doctor at some stage prior to the lodgement of her application but was unsure of the date. When asked if she had sought medical attention at any other time during the 21-day period, Ms Davis indicated that it was only on the date that the certificate was issued. This would suggest that Ms Davis had only seen her doctor on 24 May 2023, the day after the 21-day period expired. The fact that Ms Davis did not seek medical attention until this time does seem at odds with a suggestion that she had “experienced debilitating anxiety and depression” during this period and raises the question of why, if her condition had deteriorated to the point of incapacitation, she did not seek medical attention.
Ms Davis has not provided any other substantive evidence, medical or otherwise to demonstrate that her condition during the relevant times would have incapacitated her to the extent that she was incapable of making an application within the prescribed time period.
The Respondent however, provided evidence to suggest that during the 21 days following the dismissal, Ms Davis had been capable of engaging in activities to establish a new business, “Cindy’s Colonics” and secure practicing rooms. Whilst there was no direct evidence to suggest that work to secure this new business had taken place within the 21-day period, Ms Davis did confirm that she had:
“taken steps to find a job”; and
“that she had been offered a room at Hippocrates Health Retreat at Mudgeeraba and at the moment that's what I'm getting organised to work in, which I'll start next week.”On the basis of the information before me, I am not convinced that Ms Davis was medically incapacitated to the extent that she would have been incapable of lodging her application within the prescribed time period.
Turning to the Applicant’s second argument, Ms Davis submitted that she did not have the funds to seek legal advice and therefore had relied on access to a free legal service at the Gold Coast Community Legal Centre. Ms Davis submits that it took her several weeks to get an appointment with a solicitor which eventuated on the evening of 23 May 2023 (the final day for Ms Davis to lodge her application). Ms Davis submits that the solicitor informed her that it appeared that she may have been employed under a sham contracting arrangement and that as such, she could make a claim for unfair dismissal. When asked during the determinative conference what the solicitor had advised regarding the lodgement date of the application, Ms Davis stated that the solicitor advised her to lodge her application as soon as possible.
Ms Davis provided conflicting evidence with respect to when she visited the legal service. During the determinative conference, Ms Davis stated that she spoke to the solicitor on the 22 May 2023, and subsequently lodged her application on 23 May 2023. Her written evidence however indicated that she had seen the solicitor on 23 May 2023, and that the solicitor had helped her to prepare and lodge her application the next day (24 May 2023, the day after the 21-day period had lapsed). It is noted that this is also the same day that Ms Davis visited her doctor and was issued with the medical certificate discussed above.
Assuming that Ms Davis's appointment with her Solicitor took place 23 May, it is clear from her evidence that she was advised of the timeframes, and the need to act quickly if she was to get her application in on time, but chose not to make any attempt to lodge the application that day, instead she waited until the next day, in full knowledge that she was outside of the prescribed time period.
Considering all the factors above, I have formed the view that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute between the parties with respect to the fact that Ms Davis resigned from her position. There are however differing views as to when this occurred with Ms Davis submitting that the dismissal (by way of constructive dismissal) took place 2 May 2023, as a result of an ultimatum she says she was given by Ms Wilson to accept the terms of the new contract or leave. The Respondent submits that the Applicant resigned on 1 May 2023. In any event, Ms Davis's evidence and her application to the Commission for an unfair dismissal remedy clearly indicate that she became aware of the dismissal on 2 May 2023, and as such had the benefit of the full 21-day period to consider her position, seek advice and lodge her application. This consideration weighs against an extension of time in this case.
Action to Dispute the Dismissal
As canvassed above, the evidence of both parties confirms that Ms Davis resigned from her position and as such, she took no steps to dispute the dismissal, I have treated this matter as a neutral consideration.
Prejudice to the Employer
There is no evidence of any prejudice to the Respondent. I have treated this matter as a neutral consideration.
Merits of the Application
The Respondent contends that the dismissal was not unfair because Ms Davis resigned from her position and because her relationship with the Respondent was that of a contractor, not an employee.
To that end, the Respondent has raised the following jurisdictional objections:
a.That the Applicant was not an employee; and
b.That there was no dismissal, as the Applicant chose to cease the employment relationship.
The jurisdictional objections above would be key issues to be determined in this case and would turn on the factual findings made at the final hearing.
In terms of the merits of the application more generally, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits to be a neutral consideration in this case.
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 Davis to make her application. This means that Ms Davis 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:
C. Davis for herself
S. Wilson for the Respondent
Hearing details:
2023
Brisbane
10 July
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