Ms Kylie Patricia Walker v EDDCON Pty Ltd
[2022] FWC 527
| [2022] FWC 527 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kylie Patricia Walker
v
EDDCON Pty Ltd
(U2022/2269)
| COMMISSIONER LEE | MELBOURNE, 15 MARCH 2022 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed.
On 21 February 2022, Ms Kylie Patricia Walker (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with EDDCON Pty Ltd (Respondent).
The Applicant submits that she commenced employment with the Respondent on or about late March or early April 2021. Her role involved the collection of seeds from Alpine Ash trees, for which she was paid $210.00 per kilo. The Respondent maintains that the Applicant was not terminated, and that the Applicant was a contractor, not an employee.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
The Applicant’s evidence is that her employment was terminated by the Respondent with effect from 28 January 2022. The Applicant referred to SMS messages that she said she received from her employer, Mr Eddy. According to the Applicant, these messages were to the effect that the employer no longer had work for her because she had gone to the Fair Work Commission and that she was to return the work vehicle.[1]
The Respondent submits that there was no employment relationship between the Applicant and the Respondent, and that the relationship was rather one of principal and contractor. Further, the Respondent submits that “the Applicant has not been dismissed. The Applicant contacted WorkSafe about some various allegations unrelated to these proceedings. This prompted a WorkSafe investigation resulting in all her crew being stood down.”[2]
As the proceedings at this juncture are to determine the extension of time point, I am not in a position to determine as part of these proceedings whether the Applicant is an employee or contractor. I have proceeded to determine the matter on the basis that the Applicant was an employee. However, to be clear, a determination on that point will need to made as part of future proceedings. I have also, for the purposes of determining the extension of time application, concluded that if there was a dismissal, on the evidence before me that dismissal occurred on 28 January 2022. That is the date that the Applicant received the SMS messages referred to above. However, whether a dismissal occurred at all will be a matter for future determination in the event the Applicant is granted an extension of time.
In conclusion, for the purposes of this decision only, I am satisfied the termination took effect on 28 January 2022. Based on a termination date taking effect on 28 January 2022, the application for a remedy should have been lodged by no later than 18 February 2022.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 3 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 for an unfair dismissal remedy 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.394 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,
· whether the Applicant first became aware of the dismissal after the date it took effect,
· 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.[3]
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.[4] I must be satisfied that, taking into account s.394(3) that there are exceptional circumstances.
I now consider these matters in the context of the application.
a) 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.[5]
A summary of the Applicant’s evidence as to her actions since the purported dismissal, including the reason for the delay, is as follows:
· She is not highly educated, completing only up to year 9 at high school.
· She considers herself conscientious with paperwork.
· She has been stressed and anxious since losing her employment.
· She has dyslexia and can sometimes appear “a little chaotic” with regards to paperwork.
· She sought assistance from solicitors, Nevin Lenne Gross, on 3 February 2022 with regards to a range of matters, including underpayment claims, safety issues, disputes about her status as a contractor and that she was dismissed for raising underpayment claims.
The Applicant states that on 12 February 2022:
“Nevin Lenne Gross wrote to me, confirming a telephone conversation and they stated that they need for more detailed instructions within a strict timeframe, and requested that I provide certain documents and confirm my instructions to proceed with a matter in the Fair Work Commission by no later than 12 midday on 17 February 2022. They also mentioned the possibility of my partner providing instructions in relation to the circumstances set out at paragraph 6a.
In their letter to me, Nevin Lenne Gross asked for certain documents, including bank statements verifying my earnings history and the advertisement for the commencement of my engagement with my former employer. My solicitors also advised me that I potentially had reasonable prospects of success for General Protections or Unfair Dismissal, but they would require further and more detailed instructions to establish which claim was more appropriate in the circumstances.”[6]
However, during the hearing, the Applicant gave evidence that she did not read that email until 17 February 2022. That evidence conflicted somewhat with her statement where the Applicant stated that “I was aware of the deadline to provide instructions to my solicitors to enable them time to submit my application by Thursday 17 February 2022 at midday. I acknowledge I did not respond to this deadline in a timely manner.”[7]
The Applicant did not provide the documents requested by her solicitor within the timeframe set by them. In her witness statement, the Applicant states that:
“On Friday 18 February 2022, one day after the deadline of 17 February 2022 that my solicitors had provided me six days earlier, I contacted Nevin Lenne Gross. I started to discuss with my partner the possibility of him instructing Nevin Lenne Gross as well, but this triggered his mental health problems. I acknowledge that I had not provided any of the documents that had been requested.
I had provided my solicitors a large amount of other documents already, including text messages from my employer and some other documents, but I acknowledge that there were certain documents my solicitor sought in order to confirm that they could pursue an application in the Fair Work Commission. I had not provided what was requested.
Later the same day, Friday 18 February 2022, I received a further request by email from my solicitors, Nevin Lenne Gross, relisting the documents I would need to provide to pursue my claim. I confirmed with Nevin Lenne Gross that I would provide my original employment contract, a signed costs agreement and bank statements showing past earnings as well as other documents, electronically.”[8]
The reason given by the Applicant regarding why she did not provide the information on 18 February 2022 was that:
“I was attending to my partner’s mental health crisis. My partner, who I reference at paragraph 6a, who also worked for my former employer, also has aspbergers and narcolepsy, and was initially admitted to see Dr O’Brien at Church Street Doctor’s Clinic on around 4 February 2022 under suicide watch. His mental health crisis escalated on 18 February 2022 and I refer you to paragraph 10 of my statement. Unexpectedly, I was unable to attend to any further requests for documents to provide my solicitor with. I did not inform my solicitor that I would not be able to provide the documents requested on Friday 18 February.”[9]
The Applicant supplied the necessary documents to the solicitors on 21 February 2022, and the solicitors lodged the application that day.
I accept that the circumstances surrounding the Applicant’s partner on 18 February 2022 are exceptional and explain her inability to deal with matters on that day and over the weekend. However, it is also relevant that the Applicant was on notice from 12 February from her solicitors that she was to provide instructions and documents by 17 February 2022. The Applicant failed to do so.
The Applicant did not contact the solicitors on 18 February 2022, the last day she could file, as she was unable to provide the information due to her dealing with her partner’s mental health crisis. Given the extent of the crisis he suffered, it is not surprising that she was unable to provide the necessary instructions to the solicitors that day. Her evidence is that her partner suffered a manic episode that day which took some days to deal with and “ground him”. Further doctor visits were required. Her partner also suffers from anxiety with depression, narcolepsy and has Asperger’s.[10] The 18th of February 2022 was a Friday, and on the following Monday the Applicant provided the information and instructions to the solicitors, and the application was lodged that day.
The Applicant provided medical evidence that she was unable to work for the period of 7 February 2022 to 21 February 2022 as a result of her partner’s medical condition. Her evidence is that her partner was suicidal and required monitoring.[11] It is also relevant that the Applicant has dyslexia, which would have increased the degree of difficulty for the Applicant in meeting the deadline to supply her paperwork to her solicitors.
This is a case where I consider that the matters raised by the Applicant collectively show exceptional circumstances. While the Applicant was well aware of the need to provide instructions and documentation to the solicitors, the events surrounding the care of her partner on the critical day in terms of the timeline, that being 18 February 2022, combined with the difficulties the Applicant faces with her dyslexia, leads me to conclude that in the circumstances I am satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs in favour the Applicant in this case.
b) Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant formed the view based on SMS messages that her employment ended on 28 January 2022. In the circumstances, that is a matter that is neutral.
c) Action taken by the Applicant to dispute her dismissal
Turning next to the question of the action taken by the Applicant to dispute her dismissal. The evidence is that the Applicant contacted a solicitor soon after being dismissed on 3 February 2022. She sought advice about a number of matters related to her employment, including her allegation that she was dismissed for raising underpayment allegations. In the circumstances, this was clear action taken by the Applicant to dispute the purported dismissal. In the circumstances, that is a matter that weighs in favour of the Applicant.
d) 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 made no submissions on this point. The Applicant submitted that there was no prejudice to the employer.[12]
This is a short period of delay. I am not satisfied, and there is no evidence that there is any prejudice to the employer. In the circumstances, that is a matter that is neutral in the instant case.
e) 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.
There are a number of significant competing contentions as to the facts pertaining to the engagement of the Applicant by the Respondent. Depending on the determination of these matters, the Applicant’s dismissal may or may not be within jurisdiction. The competing contentions include whether or not the Applicant has been dismissed within the meaning of the Act, whether the Applicant is a contractor or employee, and whether the Applicant has completed the minimum employment period, which in turn depends on whether the Respondent is in fact a small business within the meaning of the Act.
Viewing the Applicant’s case at its most favourable, the Applicant will need to overcome these jurisdictional hurdles. It is not possible to form a view as to the likelihood of her doing so given the vigorous competing submissions on these matters.
If, however, the Applicant succeeds in overcoming the jurisdictional hurdles, then on the limited material before me, the Applicant has a case with considerable merit, as the Respondent’s submission were to the effect that the reason the Applicant was no longer given work was because of her raising a complaint with WorkSafe. This would hardly constitute a valid reason for dismissal, nor is it apparent that there was procedural fairness in effecting the dismissal.
However, these considerations will only occur in circumstances where the numerous jurisdictional objections are overcome, and on that it is difficult to assess what the likely outcome would be.
It seems to me therefore, that her claim is, on a preliminary assessment basis, not without merit. That is not to suggest that it will succeed, but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue her unfair dismissal claim. However, given the significant uncertainty connected with the jurisdictional objections, that is a matter that is neutral.
f) 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 an unfair dismissal application.
Neither party put any submissions on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me. Consequently, that matter is a neutral consideration in the present circumstances.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application 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 relief from an unfair dismissal must make the application within 21 days after it 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.394(3) of the Act, I am 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 indicated, I consider there to be an acceptable reason for the delay. This weighs in favour of the Applicant. The Applicant took action to dispute the dismissal, and this also weighs somewhat in her favour, though not strongly so given her delay in responding to the solicitor’s requests. All other factors are neutral considerations.
When I consider each of the matters set out in s.394(3), in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that they establish there are exceptional circumstances in this case which warrant the consideration of the exercise of my discretion to extend the period within which the application has been made.
As to whether I should now exercise my discretion, I am satisfied it is appropriate to do so having regard to the particular circumstances in this case. There is no matter of which I am aware weighing against an exercise of the discretion.
I therefore propose to allow a further period within which this application may be made. That further period is extended to 21 February 2022.
COMMISSIONER
Appearances:
A Grogan for the Applicant.
K Ajro for the Respondent.
Hearing details:
2022.
Melbourne (Microsoft Teams):
March 7.
[1] Transcript at PN127.
[2][2] Form F3 at Q1.3.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Witness Statement of Ms Walker dated 28 February 2022, at [7]-[8].
[7] Ibid at [20].
[8] Ibid at [10]-[12].
[9] Ibid at [15].
[10] Transcript at PN80 - PN81.
[11] Transcript at PN76.
[12] Transcript at PN44.
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