Ms Mary Moshonas v Philip W Bates
[2023] FWC 2428
•20 SEPTEMBER 2023
| [2023] FWC 2428 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Mary Moshonas
v
Philip W Bates
(U2023/5390)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 20 SEPTEMBER 2023 |
Application for unfair dismissal remedy
On 16 June 2023 Ms. Mary Moshonas (Applicant) filed an application under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that she had been unfairly dismissed from her employment with Philip Bates (Respondent). According to the terms of the application, the dismissal took effect on 18 April 2023.
On the face of the application, the application has been lodged outside the 21-day time period prescribed by s.394(2)(a). That being the case, in order for the application to proceed, the Fair Work Commission (Commission) would need to be satisfied that there were exceptional circumstances within the meaning of s.394(3) that would warrant an extension of the 21-day statutory time period.
The Respondent objected to the application on the ground that the application was out of time (the out of time objection). The Respondent also argued that application was the same as an earlier application for unfair dismissal that had been brought and discontinued by the Applicant. The Respondent submitted that because the earlier application had been made and finalised, the present application should be dismissed (the dismissal application). Further, the Respondent submitted that the Applicant was not an employee of the Respondent but rather had been engaged as an independent contractor since 2014 and had worked as a contractor from that point onwards (the contractor objection). This latter objection raises the question of whether the Applicant was protected from unfair dismissal within the meaning of s.382 of the Act.
Section 396 of the Act prescribes that certain matters be considered before the merits of an unfair dismissal application. These matters include whether the application was made within the requisite time period and whether the person was protected from unfair dismissal. This decision deals with the issue of whether the Commission should extend the time for the making of the application and the dismissal application by the Respondent. For the purposes of determining those issues, I assume without deciding, that the Applicant was an employee and a person protected from unfair dismissal.[1] Given the conclusion I have reached in relation to those matters, it is unnecessary for me to determine the issue of whether the Applicant was a person protected from unfair dismissal.
Background to the Application
The history behind the present application can be briefly summarised.
The Applicant worked as a legal secretary providing secretarial and administrative support services to the Respondent in the Respondent’s chambers in Sydney. The Respondent is a barrister.
Prior to the lodgment of the application, the Applicant had filed another application under s.394 of the Act against the same respondent. That earlier application (first application) was filed on 19 April 2023 and was given the matter number U2023/3394. The first application was, for all present purposes, in identical terms to the present application.
The first application was the subject of a conciliation conference between the Applicant and the Respondent. The conference was conducted with a member of the Commission’s conciliation staff on 23 May 2023.
Following that conference, on 26 May 2023 the Applicant wrote to the Commission conciliator in the following terms:
Good morning Mr Purvis
I refer to our last conversation on 24.5.23 at which I advised you that I did not wish to continue with this matter.
Can you please confirm that this was conveyed to other side.
Thank you and wait for your update.Yf
Mary Moshonas
On the same day the Commission wrote to the Applicant. The correspondence included the following:
Thank you for taking part in the conciliation of the above case.
Mary Moshonas has advised the Commission that they wish to discontinue their application. The case is now taken to have been discontinued in accordance with Rule 10 of the Fair Work Commission Rules 2013.
The case is now closed. This means the case cannot be re-opened or further heard by the Commission.
On 30 May 2023 the Applicant wrote to the Commission to say that that she wanted to have the matter “reopened to be reviewed/reconsidered by the Commission.”
Brief Chronology of Events After the Filing of the Present Application
After the present application was filed on 16 June 2023, the Commission wrote[2] to the parties in relation to the present application. The correspondence advised that the application appeared to be 38 days out of time. The correspondence indicated that the Commission could only extend time if there were exceptional circumstances and referred to the matters that the Commission would consider in determining whether such circumstances existed. The correspondence asked the Applicant to file and serve any material that they wished to rely on in support of an extension of time by 4 July 2023. The Respondent was asked to file a Form F3, Employer Response to Unfair Dismissal Application, within 7 days.
On 1 July 2023 the Applicant wrote to the Commission seeking further time. Time was extended until 11 July. The Applicant then contacted the Commission again, in writing, seeking a further extension of time. An extension was granted until 5 August 2023.
The matter was listed before me for case management and directions on 7 August 2023. On that day, the Respondent objected to the present application being heard on the basis that the Applicant should not be permitted to reopen the first application. Directions were made that the Respondent file and serve any submissions and material in support of an application that the present application be dismissed. The Applicant was directed to file and serve any submissions and material in support of an application for an extension of time pursuant to s.394(3). The parties were given each given until 18 August 2023 to file that material.
On 17 August the Applicant sought a further extension of time of one week to provide the material. With the consent of the Respondent, both parties were given until 25 August to file their material. They were given until 1 September to respond to the material filed by the opposing party.
After receiving the written material, the matter was listed for conference on 14 September 2023.
The Application to Dismiss
Submissions
The Respondent’s submissions in relation to the application to dismiss the present application were brief. It was argued that the two applications were identical in all material respects, that the Applicant had discontinued the first application and that the Act does not contemplate multiple appeals and re-hearings of the same dispute. The Respondent submitted that the Applicant was, in substance, seeking to re-open what he described as the first “settled” proceedings, which should not be permitted. He said that he should not be subjected to a re-run of the same Application which was conciliated and finalised by discontinuance and that the renewed Application should be dismissed. Reliance was placed on the decision of the Full Bench of the Commission in Grabovsky v United Protestant Association NSW Ltd[3] and K v The Employer.[4]
The Respondent’s submissions made no explicit reference to sections 399A or 587 which deal the Commission’s power to dismiss unfair dismissal applications and other applications. Nor did the written submissions refer to Division 3 of Part 6-1 which prevents multiple applications in relation to the same conduct. Some reference was made to sections 729 and 730 by the Respondent at the directions hearing on 7 August 2023.
The Applicant did not engage directly with the arguments relating to whether the application should be dismissed because of the first application. However, she did not dispute that the first proceedings had been brought or that she had written to the Commission in the terms described on 26 May to bring that proceeding to an end.
Consideration
In the matter of Narayan v MW Engineers Pty Ltd[5] a Full Bench of the Commission considered the circumstances in which an applicant could recommence unfair dismissal proceedings that had previously been discontinued. The Bench there concluded that where an applicant unconditionally discontinues his or her application before the Commission has determined the matter on the merits, then that person can make a fresh application in respect of the same dismissal, provided the prescribed application fee is paid, and the application is lodged in time, pursuant to s 394(2).[6]
In reaching that conclusion the Full Bench described the circumstances in which Division 3 of Part 6-1 would apply to prevent multiple unfair dismissal proceedings from being brought in relation to the same dismissal. In that respect, section 725 provides as follows:
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
For the purposes of s.725, the relevant section which proscribes further unfair dismissal proceedings is section 729. That section provides:
729 Unfair dismissal applications
(1) This section applies if:
(a) an unfair dismissal application has been made by the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.
(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.
As is apparent from the terms of these provisions, sections 725 and 729 do not operate to preclude the bringing of a subsequent application here because, just as was the case in Narayan, the first application had been withdrawn by the Applicant when the second application was made. Division 3 of Part 6-1 of the Act therefore does not operate to prevent the bringing of the present application.
Section 399A makes specific provision for the dismissal of applications for orders under Division 4 of Part 3-2 of the Act relating to unfair dismissals. It provides:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
The Commission noted in Narayan that in circumstances where an unfair dismissal application has been discontinued after a settlement agreement has been concluded then the Commission may, on application by the employer, dismiss a subsequent unfair dismissal application pursuant to s.399A(1)(c).[7]
The Bench appears to have assumed in Narayan that s.399A(1)(c) applies equally to a second application as it does to a failure to discontinue an original application after a settlement agreement in respect of that application has been concluded. In any event, there is nothing before me to indicate that there was anything other than an unconditional discontinuance of the first application on the part of the Applicant, rather than a discontinuance as a result of a settlement agreement. There is nothing on the Commission’s file to indicate that the Applicant’s decision on 26 May to no longer continue with the matter came about as a result of a settlement agreement between the Applicant and the Respondent. The Respondent did not provide any evidence to show that such an agreement had been entered into. Presumably, if there were any such agreement, the Respondent, as a party to the agreement, would be able to provide those details. Nor did he refer to the terms of any such agreement or expressly rely on s.399A(1)(c) as a basis on which the application should be dismissed. It should be noted here that discontinuance of an application under the Act is not contingent upon a settlement agreement between parties. Section 588 of the Act permits a party to discontinue a matter in accordance with the procedural rules of the Commission and whether or not a matter has settled.
In the circumstances I am unable to conclude that the Applicant unreasonably failed to discontinue the application after a settlement agreement had been concluded. Section 399A(1)(c) therefore does not apply and the remaining subsections of that section are not relevant in this case.
Section 587 provides another source of power for the Commission to dismiss an application. It provides, relevantly:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.
There is nothing before me to indicate that subsections (1)(a) or (b) are applicable and there is insufficient material before me to conclude that the application has no reasonable prospects of success. Again, no express reliance was placed on this section by the Respondent. I conclude that there is no basis to dismiss the application under this section.
The Respondent’s dismissal application is therefore dismissed.
Extension of Time
When did the dismissal take effect?
The first and second applications filed by the Applicant both provided that the dismissal took effect on 18 April 2023. Neither the Applicant nor the Respondent contended that the dismissal took effect on some date other than 18 April 2023. I am satisfied that the dismissal took effect on 18 April 2023.
When was the application made?
The present application was filed on 16 June 2023. The 21-day period prescribed by s.394(2) does not include the day on which the dismissal took effect.[8] Since the dismissal took effect on 18 April 2023, the final day of the 21-day period was therefore 9 May 2023 and ended at midnight on that day. The present application was therefore out of time by 38 days.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[9] I set out my consideration of each matter below.
Reason for the delay
The delay is the period commencing immediately after 9 May 2023 until 16 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[10]
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.[11]
An applicant need not necessarily 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.[12]
Despite numerous opportunities to provide material to explain the reason for the delay, the Applicant provided very little information. At various points where the Applicant requested additional time to provide material, some reference was made to the fact that the Applicant was caring for her elderly parents who were in poor health. On 1 and 4 July 2023 the Applicant indicated that both of her parents were in hospital. In her submission of 28 August 2023, the Applicant indicated that her parents had required her assistance ‘over the last 12 months.’ No further details as to those circumstances were provided.
The first application was filed on the day after the dismissal took effect. No doubt the Applicant relied on that application and the Commission processes that followed it to pursue her claim. At that stage the Applicant appeared to be diligently pursuing her claim. However, by the time the conciliation conference had occurred on 23 May 2023 the 21-day deadline for the lodgement of any further application had passed. The risk the Applicant faced by deciding to discontinue the first application when she did was that any subsequent application would be out of time. I doubt the Applicant appreciated that to be the case when she discontinued the first application. She was unrepresented and distressed by the circumstances in which she had ceased to be engaged by the Respondent. Nonetheless a decision to discontinue and recommence a fresh application, even in circumstances where the Applicant is unaware that she might be called on to provide a reason for the delay in filing a second application, does not adequately account for the delay which has occurred here. Moreover, even accepting that the pursuit of the first application provides a partial explanation for late lodgement, there was nothing put by the Applicant to explain why it took her from the date that the first application was discontinued to the date when the second application was commenced, to lodge that second application.
I am not satisfied that there has been an adequate explanation for the delay. This counts against a conclusion that there are exceptional circumstances to justify an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant said she was advised of the termination by telephone on 18 April 2023. I find that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. There is nothing to weigh in favour of the Applicant under this heading.
What action was taken by the Applicant to dispute the dismissal?
The Applicant filed the first application the day after the termination on 18 April 2023. From that point or shortly thereafter, the Respondent was on notice that the termination was disputed. The Applicant pursued the first application through to the conciliation process on 23 May 2023. To this extent the dismissal was actively challenged by the Applicant and the prospect that the matter might ultimately be determined by the Commission was a real one. These are factors that weigh in the Applicant’s favour.
However, from 26 May 2023 following the discontinuation of the first application, the Respondent must have believed that the matter had been finalised until he was notified of the existence of the second application after 16 June 2023. The dismissal was, in effect, disputed by the Applicant, then not disputed and then disputed again. It was established that the Applicant had no contact with the Respondent between the time the first application was discontinued and the lodgement of the current application. In that case the Respondent was unaware that the matter had been revived until he received the second application. Overall, I am prepared to give some weight to the steps taken by the Applicant to dispute the dismissal even though the Applicant’s position changed. Any uncertainty or disadvantage to the Respondent arising from this changing position can be accounted for under the heading which follows.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submitted that there would be prejudice to him if an extension of time were to be granted. He said he would be required to deal with a second application which was the same as the first and which had been the subject of an extensive conciliation process. Although the Respondent was on notice that the dismissal was disputed at an early stage, I accept that there is some prejudice involved in having to contend with a second application in the same terms which the Respondent believed had been resolved through a process that he participated in. This weighs against the Applicant’s case for an extension of time.
What are the merits of the application?
The Applicant submitted that the termination of her employment was unfair in the circumstances because she had worked with the Respondent since 2014 and was dismissed summarily by telephone without any reasons being given. The Applicant said she had worked diligently over this period. There was no evidence of any performance or conduct issues relating to the Applicant.
The Applicant also provided evidence about her working arrangements. She said she worked exclusively for the Respondent on a regular basis for five days each week. In her submissions prepared by her accountant, the Applicant said she worked under the Respondent’s direction and control at the Respondent’s chambers and that at the Respondent’s request she obtained an Australian Business Number. The Applicant said she was paid $30 per hour which was to include annual leave and sick leave entitlements. The Applicant said she had not received any superannuation contributions and that the Respondent had promised to “pay her in full” at the conclusion of her employment. Aside from compensation for unfair dismissal, the Applicant sought the payment of annual leave, long service leave, sick leave and unpaid superannuation contributions in her application.
The Respondent submitted that the Applicant was never employed by him but at all times was engaged as an independent contractor. He provided a copy of an email from October 2014 which he said set out the terms of the Applicant’s engagement as a contractor. According to this document, the Applicant was to be paid $33 per hour, did not qualify for any form of paid leave or workers compensation and was to be responsible for her own income tax arrangements. The Respondent submitted that the Applicant did not work exclusively for him but provided support services to other barristers within his chambers.
The merits assessment here is an essential step in a broader inquiry directed at determining whether there are exceptional circumstances that would warrant an extension of the time limit for the filing of an application. As is apparent from outline of the parties’ respective positions above, much of the focus of the submissions was on the Applicant’s legal status as either an employee or independent contractor. Even though it is not necessary to resolve every contested question of fact and law for present purposes, there are difficulties in arriving at even a provisional view as to the merits of this matter. I note that there was nothing to contradict the limited material the Applicant provided as to the circumstances of her dismissal, which on the face of it, would support a view that the dismissal was, at the very least, harsh. On the other hand, if the Applicant is an independent contractor at law that is a complete answer to this application. The final determination of that question would require a more comprehensive inquiry and analysis than has been undertaken here. Such an inquiry would be undertaken if the Applicant elects to pursue a claim for unpaid entitlements through the courts. However, on the basis of the limited material before me I am unable to form a firm view as to the merits of the application and I therefore regard the merits as a neutral consideration in the overall assessment.
Fairness as between the Applicant and other persons in a similar position
The Applicant did not argue that she had been treated unfairly compared to another person in a similar position although she clearly disputed the fairness of the dismissal itself. I find that there is nothing for me to weigh under this heading in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
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.[13] 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.[14]
Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.
Conclusion
The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Ms Mary Moshonas, for the Applicant.
Mr Philip W Bates, for the Respondent.
Hearing details:
In-person at Fair Work Commission, Sydney on Thursday, 14 September 2023 at 2:00pm AEST.
[1] See Herc v. Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234.
[2] Letter 29 June 2023.
[3] [2019] FWCFB 1964 at paragraphs [14], [22], [23], [26] and [27].
[4] [2022] FWC 3085 at paragraphs [4], [24], [25] and [26].
[5] (2013) 231 IR 89.
[6] At pages 95 and 96. See also AB v. Tabcorp Holdings Ltd[2015] FWCFB 523 at [12].
[7] At page 96.
[8] 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.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).
[10] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[11] Stogiannidis (n 6).
[12] Stogiannidis (n 6) [40].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13] (‘Nulty’).
[14] Nulty (n 14). See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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