Ms Jeanette Cowley v Lanees Cleaning Services Pty Ltd
[2022] FWC 2738
•13 OCTOBER 2022
[2022] FWC 2738
The attached document replaces the document previously issued with the above code on 13 October 2022.
MNC has been corrected to [2022] FWC 2738
Associate to Deputy President Cross
Dated 14 October 2022
| [2022] FWC 2738 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Jeanette Cowley
v
Lanees Cleaning Services Pty Ltd
(C2022/3616)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 OCTOBER 2022 |
Application to deal with contraventions involving dismissal
General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.
Ms Jeanette Cowley (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that she has been dismissed from her employment with Lanees Cleaning Services Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act (the Application). The Respondent has objected to the Application on the grounds that the Application was made out of time.
Directions were issued for the Applicant and the Respondent to file materials relating to the issue of whether the Application should be accepted notwithstanding that it was made out of time. The Applicant relied upon the contents of the Application and an Outline of Submissions. The Respondent relied upon the contents of their Form F8A Response filed in this matter, an Outline of Submissions with annexures, and two bundles of text message conversations.
Relevant Facts
The Applicant is deaf. She can lipread but finds it can be difficult. She has bi-lateral hearing aids and participated in the hearing of this matter with an Auslan interpreter and a disability support worker.
The Applicant commenced working for the Respondent as a cleaner on 15 March 2022, sixteen days before her dismissal. The Applicant claimed she was an employee, however the Respondent asserts she was a contractor working with an ABN.
Prior to commencing with the Respondent, the Applicant attended a job interview where she lip read what was being put to her, and subsequently had an email exchange with the Respondent in which her emails were as follows:
Good morning Deb
I met with Darren this morning at peninsula club .showed me around.and he has asked me to email you to let you know l already made plans for 26th April for 7 days away .this was arranged last year had to postponed due convid lockdown.
am happy do the job. just want let you know those dates.
look forward to hear from you.
thanks kind regards jen
…………………………………………………………………………………………………………………………………….Good afternoon Deb
hope your well.and having a good day
thanks for your email.
my Abn is ----------. can ypu pay on that and I pay own tax.
Darren says pay $550 per week.
what is it with ABN ?
bank details
Account
jen Cowley
…………………………………………………………………………………………………………………………………………
Hi Deb
I don't have public liability insurance..
I wondering is the pay the same rate with on tax book and without?
thanks jen
………………………………………………………………………………………………………………………………………..Hi Deb
I just found out that I can use Abn and need need public liability insurance as am working for you as contract casual.
even though I work at other places they use my Abn and not need public liability...
l cannot fill put tax form through phone
need you send me form if necessary?
thanks jen
……………………………………………………………………………………………………………………………………………………..
Morning Deb
hope you recieved my last email. I've been told can have Abn to work and even other places I work I use Abn and not ask for public liability.
also pay is due today and for last week's.
kind regards jen
……………………………………………………………………………………………………………………………………………………………..
The Applicant’s supervisor was Mr Darren Shiel, an Accounts Manager with the Respondent. In the course of her engagements, the Applicant dealt with Mr Shiel by text messages. On 31 March 2022, the Respondent was advised by someone messaging on the Applicant’s behalf:
Thanks only way contact is via text please .. so text jen [the Applicant’s number was provided]
On 21 March 2022, apparently at around 6.30am, the Applicant texted Mr Shiel as follows:
morning Darren can't and go clean I thought I be ok still not had diahrea through night and vomiting
At 6.25am on 25 March 2022, the Applicant texted Mr Shiel as follows:
Morning Darren are you able to cover the clean pis am still at hospital with Partner since 3 30 will be few hrs
Mr Shiel responded:
I'm in the city.
This can't keep happening.
At 8.38am on 31 March 2022, Mr Shiel text messaged the Applicant as follows:
Morning. What has happened today.
Venue tells me no one there.
Venue opens in twenty minutes.
At 8:47 am the Applicant responded:
morning geez sorry alarm didn't go off. just woke now I can get ready to go
let me know
At 8.56am Mr Shiel responded:
Yes. Get there ASAP.
The Applicant immediately responded:
ok will do
will I vacuum all venue?
or do where it 's dirty and what about mopping as
can't have it wet for safety
There followed some brief messages. Thereafter, at 10.09am, Mr Shiel messaged the Applicant as follows:
Once again you have let the venue and us down.
Do you want the job or not?
The Applicant responded at 10.13am:
sure do didn't expect the alarm not go off and woke realise no power sorry did explain that to Deb and venue I explained to venue
lady I said sorry she soad no that's ok thought wasn'tas I would have done
The Respondent asserted that the Applicant was late, or did not attend work at all, on at least seven of the 16 days she was engaged.
The Applicant completed the Application and dated it 24 April 2022.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
It is agreed between the parties that the dismissal took effect on 31 March 2022. The final day of the 21 day period was therefore 21 April 2022, and ended at midnight on that day. The Application was made on 20 June 2022. The Application was therefore made 60 days late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under section 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 21 April 2022. The delay is the period commencing immediately after that time until 20 June 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[5]
The Applicant submitted:
The 21 day requirement, in my case, was manifestly inadequate to enable me to lodge the application on time as there were significant delays in getting the support I needed to translate an interpret my application from English into Auslan.
This/means that tasks required can be challenging, complex with every single step taking a considerable amount of time (days and weeks) for me to understand, work through and to be in a position to be able reply in a timely manner.
The Applicant further elaborated on the difficulties she identified, submitting:
I communicate in Australian Sign Language (Auslan). This is a substantial hurdle that I must overcome and impedes my ability to fully understand what correspondence is being provided to me and what is required by me to comply with the Fair Work Commission requirements. I do not understand the English words used in the correspondence in the same way a hearing person does. I require all correspondence to be translated from English into Auslan, so I understand what is being said & can reply accordingly.
In response, the Respondent submitted:
The Applicant also asserts it takes her a considerable amount of time (days and weeks) to understand, work through and to be in a position to reply in a timely manner. The Respondent does not accept the Applicant's reason for the delay because the Applicant has been able to respond to emails and text messages when communicating with the Respondent in a timely mariner. This demonstrates the Applicant's ability to read and understand the text before her and respond accordingly. The Applicant's claims of difficulty in completing the paperwork to file the Application are not credible given the Applicant's ability to respond to correspondence with the Respondent over the period between 13 March 2022 and 31 March 2022.
It is clear from the materials filed in this matter, of which some are outlined above as relevant facts, that the Applicant could readily and promptly correspond with the Respondent by email and text messages. While I accept the Applicant needed the assistance of an interpreter, I note that in many matters before the Commission parties require the assistance of an interpreter and nonetheless comply with time frames. I do not consider that the difficulties suffered by the Applicant in any way precluded the Applicant filing the Application within the 21 day period.
While the Applicant referred to having engaged a disability support worker after filing the Application, she has failed to explain the significant delay from 21 April till 20 June 2022. Indeed, if the Applicant did sign the Application on 24 April 2022 as recorded on the Application, that would indicate a 57 day period of inaction after a three day delay.
Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for any of the period of the delay, and that is a matter that weighs heavily in favour of the Respondent in this matter.
What action was taken by the Applicant to dispute the dismissal?
The Applicant did not take action to dispute her dismissal prior to making the Application. This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, as the Respondent was unaware of the Application, I do not find that the Applicant took any action to dispute the dismissal. I consider, however, this factor is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent conceded that there is no significant prejudice to that it would suffer as a consequence of the extension of time being granted, aside from the costs and time incurred to defend the substantive merits of the Application. Accordingly, this is a neutral factor for the Commission's consideration.
What are the merits of the Application?
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[6]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. I agree with the Respondent’s submission that the merits are a neutral consideration.
Fairness as between the Applicant and other persons in a similar position
While both the Applicant and the Respondent each referred to various previous decisions of the Commission, I did not consider any of those decisions apposite to the unique facts in this matter. I am unaware of any relevant matter or decision for consideration in determining this factor. I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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 nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]
It is clear that the factor that has been accorded significant weight in this matter is the absence of an acceptable reason for the delay, and that factor weighs heavily in the Respondent’s favour.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
J. Cowley for the Applicant
D. Lane for the Respondent
Hearing details:
2022.
Sydney (via Videoconference):
September 15.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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