Nicholas Weir v Base Body Company Pty Ltd

[2024] FWC 1266

[2024] FWC 1266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Weir
v

Base Body Company Pty Ltd

(U2024/3818)

COMMISSIONER CRAWFORD SYDNEY, 16 MAY 2024

Unfair dismissal application filed out of time – no satisfactory reason for delay – merits weigh against an extension - no exceptional circumstances – application dismissed

Background

1. Nicholas Weir (Mr Weir) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he has been unfairly dismissed by Base Body Company Pty Ltd (Base Body).

1. Base Body operates fitness training facilities. Mr Weir commenced performing work for Base Body on around 30 June 2021. Mr Weir performed various administrative duties. There is dispute between the parties regarding whether Mr Weir performed work as an independent contractor or as an employee. 

1. Mr Weir ceased performing work for Base Body on 28 February 2024. This occurred after James Yammine (Owner/Director) raised various concerns with Mr Weir’s conduct and performance.

1. Mr Weir’s Form F2 unfair dismissal application was received by the Commission on 3 April 2024.

1. Base Body did not file a Form F3 employer response to the unfair dismissal application. However, on 9 May 2024 Mr Yammine sent an email to the Commission which indicated Base Body was opposing Mr Weir’s application on the basis that he was not an employee and was also opposing the granting of an extension of time.

1. I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for 13 May 2024 via video.

1. Mr Weir represented himself at the determinative conference/hearing on 13 May 2024. Mr Yammine represented Base Body. 

1. At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference so I could take a more active role in gathering evidence from the parties. There was no opposition to this. I conducted the proceeding as a determinative conference.

Material filed

Mr Weir

1. Mr Weir relied on his Form F2 unfair dismissal application and an email filed with various attachments on 17 April 2024. The emails and attachments refer to Mr Weir’s partner suffering a serious fall on 12 February 2024 which required her to be treated in hospital. Ms Weir’s partner is still recovering from her injuries. I marked the material filed by Mr Weir as Exhibit A1.

1. Mr Weir answered several questions from me under an affirmation and was cross-examined by Mr Yammine.

1. Mr Weir made oral closing submissions at the end of the determinative conference.

Base Body

1. Base Body relied on Mr Yammine’s email to the Commission dated 9 May 2024. The email included a screenshot of messages between Mr Yammine and Mr Weir on 17 February 2024. Mr Yammine enquires about Mr Weir’s partner’s condition and Mr Weir responds: “yeah she’s better just 10 days of rest in bed – can’t do much for broken rib just discomfort.”

1. Mr Yammine answered several questions from me under an affirmation and was cross-examined by Mr Weir.

Extension of time

1. Section 394(2) of the FW Act provides that an unfair dismissal 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?

1. As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”

2. Although Mr Weir’s application indicated he was not sure about the dismissal date, I am satisfied based on the evidence of Mr Weir and Mr Yammine that the working relationship ended on 28 February 2024.

1. Given the purported dismissal date of 28 February 2024, the 21-day filing period ended on 20 March 2024. Mr Weir’s application was filed 14 days late on 3 April 2024. As a result, Mr Weir needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

1. Under s. 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 Mr Weir first became aware of the dismissal after it had taken effect; and

(c)   any action taken by Mr Weir 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 Mr Weir and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

Consideration

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 20 March 2024. The delay is the period commencing immediately after that time until 3 April 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

1. 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.[3]

1. Mr Weir 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 Mr Weir has not provided any reason for any part of the delay.[4]

1. Mr Weir referred to his partner’s serious fall and stress associated with his dismissal as the reasons for the delay. While I accept Ms Weir’s partner having a serious fall would have had a significant impact on his life and would have caused him considerable concern, I do not consider the medical evidence establishes that it prevented Mr Weir filing an unfair dismissal application until 3 April 2024. I particularly note Mr Weir’s partner was certified fit to work from home from 19 February 2024.[5] Mr Weir’s message to Mr Yammine on 17 February 2024 is also inconsistent with the proposition that Mr Weir’s partner needed extensive care until 3 April 2024. Further, there is no dispute that Mr Weir had been able to attend work on 28 February 2024 when the termination conversation happened with Mr Yammine.

1. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6]

1. I have no medical evidence concerning any illness or injury Mr Weir suffered as a result of purportedly being dismissed on 28 February 2024. I do not consider Mr Weir’s evidence about being shocked and stressed about the working relationship ending provides a sufficient explanation for the delay.

1. I find Mr Weir does not have a satisfactory reason for the delay and consider this weighs heavily against a finding of exceptional circumstances and the granting of an extension of time.

Did Mr Weir first become aware of the dismissal after it had taken effect?

1. Mr Weir accepted he was aware that the working relationship ended on 28 February 2024. I consider this to be a neutral factor.

What action was taken by Mr Weir to dispute the dismissal?

1. Mr Weir did not argue he took any action to dispute the dismissal besides filing an unfair dismissal application. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. Base Body did not refer to any particular prejudice it will suffer if an extension of time is granted. I consider prejudice to be a neutral factor.

What are the merits of the application?

1. 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)”, or in this case, s.394(3)(e).[7]

1. Mr Weir accepted during the determinative conference that Mr Yammine asked him whether he had a preference about the nature of the working relationship when Mr Weir commenced working for Base Body and Mr Weir expressed a preference to be engaged as an independent contractor. Neither party could confirm whether or not their arrangement was reduced to writing and neither was able to produce a copy of any written agreement. Mr Weir also referred to operating as a sole trader. There is no dispute that Mr Weir invoiced Base Body for work performed, and no payslips were provided. Mr Weir gave evidence that he had significant flexibility in the relationship and that the hours of work he invoiced for would fluctuate week to week. Mr Weir also accepted he was performing other work during his relationship with Base Body.

1. Although there is insufficient evidence to reach a conclusion on the issue, I consider it is highly likely Mr Weir was engaged as an independent contractor and not an employee. That means it is highly likely Mr Weir is not a person protected from unfair dismissal in accordance with s.382 of the FW Act.

1. I do not have sufficient evidence to make any sort of assessment regarding Mr Weir’s complaints about the reasons for his relationship with Base Body ending on 28 February 2024. I would treat this issue as neutral.

1. Given the high likelihood that Base Body has a valid jurisdictional objection to Mr Weir’s unfair dismissal application, I consider the merits of the application weigh against a finding of exceptional circumstances and the granting of an extension of time.   

Fairness as between Mr Weir and other persons in a similar position

1. As a Full Bench has noted, “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 position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[8] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[9]

1. Neither party advanced a persuasive argument regarding this factor. I consider this to be a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

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 nor unprecedented, nor even very rare.[10] 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.[11] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension.[12]

1. I have not found that any of the relevant factors weigh in favour of an extension of time being granted to Mr Weir. I have found Mr Weir does not have a satisfactory explanation for the delay and that the merits of the application weigh against the granting of an extension of time.

1. Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

Conclusion

1. I decline to grant an extension of time for the filing of the application.

1. The application is dismissed.

COMMISSIONER

Appearances:

Mr Weir representing himself.

Mr Yammine for Base Body. 

Determinative conference:

13 May.
Via Video.
2024.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[5] A1 – certificate of Dr Aninda Antar dated 1 March 2024.

[6] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[8] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].

[9] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[12] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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