Raquel Cerne Chaves v Sitejabber
[2021] FWC 3330
•9 JUNE 2021
| [2021] FWC 3330 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raquel Cerne Chaves
v
Sitejabber
(U2021/1925)
DEPUTY PRESIDENT ASBURY | BRISBANE, 9 JUNE 2021 |
Application for an unfair dismissal remedy.
Introduction
[1] This decision concerns an application by Ms Raquel Cerne Chaves (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The Applicant contends that she was employed by an entity she refers to as Sitejabber (the Respondent) in the capacity of Sales Representative, from 2 September 2019.
[2] The Respondent objects to the application asserting that the Applicant was engaged as an independent contractor. The Respondent also asserts that it is a company known as Electric Ecommerce Inc DBA Sitejabber and is incorporated in the United States of America. The principal of the Company who currently resides in Florida variously refers to herself as Ms Colleen Stevens and Ms Cresta Pillsbury and corresponded with the Commission using both names. It suffices to say that Ms Stevens/Pillsbury has some unusual views about the Australian legal system and in particular, her obligations under corporations and employment law.
[3] Regardless of the nature of the relationship between the Applicant and the Respondent it is not in dispute that it ended on 14 January 2021. If the Applicant was dismissed and wished to file an application for an unfair dismissal remedy, she was required by s. 394(2) of the FW Act to make that application “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The application was required to be filed by midnight on 4 February 2021. It was filed on 8 March 2021, 32 days outside the required time. The Applicant seeks a further period in which to make her application.
Approach to deciding whether to grant a further period
[4] The FW Act allows the Commission to grant a further period in which to make an unfair dismissal application only if it is satisfied that there are “exceptional circumstances”. 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.1 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.2
[5] The requirement that there be exceptional circumstances before a further period can be granted under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[7] 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.
Directions and hearing
[8] On 30 March 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide reasons as to why a further period in which to make her application should be granted, having regard to the matters in s.394(2) of the FW Act, which were set out in that correspondence. The Applicant filed her response on 6 April 2021. That response consisted of a number of documents which addressed a range of issues with the Respondent relating to the merits of her unfair dismissal application and claims for wages and commission amounts said to be owed to the Applicant but did not deal with the matters relevant to whether a further period in which to make her application should be granted.
[9] The matter was allocated to me to determine whether a further period should be granted. I issued Directions requiring that the Applicant file and serve any material she sought to rely on, in relation to whether a further period should be granted addressing the matters in s.394(3) of the FW Act which were set out in the Directions. Apart from refiling a copy of her response to Vice President Catanzariti’s Chambers, the Applicant did not file any additional material responsive to the Directions. The matter was listed for hearing on 27 April 2021.
[10] At the hearing the Applicant made reference to additional medical evidence she sought to file and rely on. The Applicant was granted a further opportunity to provide this evidence by 4 May 2021. The Respondent was also given an opportunity to provide further material in opposition to the extension of time in which to make the application being granted. I turn now to consider that evidence.
Consideration
Reason for the delay
[11] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4
[12] The FW 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 circumstances must be considered.5
[13] In her Form F2 – Application for unfair dismissal remedy, the Applicant acknowledged that she was filing outside of the statutory timeframe, and stated in relation to the reason for the delay:
“I have been ill, I suffer from anxiety, depression, migraines and dealing with acute pain.
During my employment I now feel that I was emotionally blackmailed and bullied into believing that Colleen Stevens, who also goes by the name of Cresta Pillsbury was going to take me under her wing and mentor me. She said that she believed in me and I had what it took to go big. Colleen had asked me to sign a legal document to become a formal director of Sitejabber as they are NOT Australian Citizens and only here on a visa. I said no. This was December 2019. This is when she started promising me bonuses after 12 months of employment. I had been wrongly paid. I was asked to work from 5 am to sometimes 9pm as most of their clients were in the US. I was never paid for the extras hours I put in and when I received my first commission pay I was paid in AUD sales when the sales were made in USD – there was no conversion on currency . (eg 2000 USD sale per year I would get 10% of the sale = 200 USD – I was paid 70% of 200 AUD) Colleen had assured me that once the business picks up she would correct the payments. Blah Blah Blah I believed her and kept working purely because of her manipulating promises and it was covid and more than half the world had no job. Please excuse my transparency.
I was being treated respectfully at this time and we grew close when they got back from the US. I continued to be the only employee until October 2020 where they hired 2 more staff.
I was over worked being paid for 40 hours per week when I was doing close to 60.
After the other two employees started I noticed her tone changing with me and she became quite a bully.
One particular day she literally came to me (open office) and told me that I am not allowed to write any more emails unless she looks at them first and that I have no idea how to write, I am not capable of writing formally and that I must never learnt how. One of the most belittling statements I have ever had made about me and in front of the other guys. She then continued to talk to me in a disrespectful manner, said she would pay for an English writing course because I was that bad. She would literally talk at me and demand me to do things and ordered me to come to her while she spoke down at me about mistakes I did not always do. This made me extremely uneasy at work and so I was making a few more mistakes. My Anxiety levels were high, I was having regular migraines, my insomnia worsened.
Two weeks before my termination I went in for an MRI of my brain because of my excessive migraines.
To cut this short since the day she terminated me I have been depressed, my anxiety had gotten worse, migraines. It is quite crippling and to add my acute pain from an injured shoulder, I have TMJ. I have been seeing a therapist, she said stress can cause a lot of my inflammation and that I should try and medicate.
I have been on medication for depression and pain. I have attached just one letter from my GP and I am happy to get one from my therapist should you require this.”
[14] The Applicant annexed to her Form F2 a copy of a medical certificate, dated 4 March 2021 which stated that she has a medical condition, and has required ongoing support from her General Practitioner regarding her mental health and chronic pain since her dismissal on 14 January 2021. It also stated that the Applicant “feels that these problems and associated morbidity have been prohibitive in allowing her to undertake formal steps to address her dismissal”.
[15] In response to the further directions following the hearing, the Applicant provided letters from her General Practitioner and an RTT Practitioner and Mindset Coach, as follows. The letter from the Applicant’s General Practitioner was dated 3 May 2021. It stated that the General Practitioner had first consulted with the Applicant on 26 June 2018, and since that time had consulted the Applicant on “50 separate clinical episodes”. The letter also stated that the Applicant’s first documented work-related stress episode occurred on 3 October 2020, for which she required “pharmacotherapy” and that she subsequently struggled with symptoms related to her work stress, including recurrent severe migraines, chronic pain, severe insomnia, and anxiety attacks. It further stated the Applicant had required continued support and counselling as a result and had sought this from a “psychologist” (Iza Dabek) weekly for ten weeks starting on 15 January 2021.
[16] The Applicant also provided a letter from Iza Dabek who states that she is a Therapist, trained in “Rapid Transformational Therapy, Mindset coaching, Hypnotherapy, NLP, and Emotional Freedom”. It is not apparent that Iza Dabek is a psychologist. The letter from the Therapist said that the Applicant first contacted her on 1 and 2 December 2020 and that the Applicant attended for an assessment on 7 December 2020 and began a 10-week course of sessions from 15 January 2021. According to the Therapist, in her first session, the Applicant was very stressed and upset about losing her job and was suffering from chronic anxiety. The Therapist’s assessment was that the Applicant displayed all the signs of occupational disfunction, anxiety of failing, anxiety of not being able to achieve her goals, a feeling of unworthiness in life, and she was not sleeping. The letter also stated that the Applicant was suffering Obsessive Compulsive Disorder which was keeping her up with unnecessary thoughts and that the Applicant had undergone hyponotherapy sessions and on the last session the “most predominant trauma” was her recent hurdles with her ex-boss.
[17] The therapist’s letter concluded that the Applicant:
“has been empowering herself and has transformed herself of self-love, self-worth, she now has more confidence and is sleeping better, even said her migraines are not as severe.
To sum this up, she came to me with broken pieces and left in one piece. She was a pleasure to work with and helped blossom again, she does have a beautiful heart”.
[18] This letter was not dated, and while the Therapist made reference to a 10 week course of sessions it does not provide any date by which the Therapist considered that the Applicant had empowered herself, or restored herself to “one piece”. The Applicant stated in an email sent when filing this further material that she had also annexed an image of “2 different types of medication” she was taking for anxiety and depression. This image was not attached to the email. Further, the Applicant’s General Practitioner has not provided any evidence of her medication or any side effects.
[19] I consider that the material filed by the Applicant evidences that she suffered some distress as result of the ending of her alleged employment with the Respondent. However, I do not accept that the medical information provided by the Applicant provides a reasonable explanation for the delay in filing her application. The medical evidence does not establish that the Applicant suffered an incapacity to the extent that this is an explanation for any part of the delay in filing her application. In this regard, I note that her treating medical practitioner stated that the Applicant felt that her medical conditions had been prohibitive to pursuing her unfair dismissal application but did not express a view that the Applicant’s capacity to deal with her application was actually impaired.
[20] I also consider that the evidence from Ms Stevens/Pillsbury about correspondence the Applicant sent the Respondent (considered below) indicates that the Applicant had capacity to dispute her dismissal and that the delay was caused by the fact that she sought to resolve her dispute with the Respondent by direct negotiation involving a legally qualified friend, rather than filing an unfair dismissal application. In this regard, I note that the Applicant sent correspondence by a number of methods, commencing on the day she was dismissed, in which she variously threatened legal action over her entitlements, to report the Respondent to Australian corporate regulators and stated that she was making an unfair dismissal application. I also note that within the 21 day period from the date she was dismissed, the Applicant was capable of attending a meeting with a representative of her alleged former employer and articulating her grievances about the manner in which she had been dealt with.
[21] If the Applicant had the capacity to send such correspondence, she also had the capacity to make an unfair dismissal application within the time required in s. 394(2) of the FW Act. The fact that she did not do so within the required time and instead chose to pursue her grievances by corresponding directly with the Respondent, was the Applicant’s choice. The exercise of this choice is not an exceptional circumstance which could provide a reasonable explanation for delay in making an unfair dismissal application.
[22] Accordingly, I find that the Applicant has not provided an acceptable explanation for the 32 day delay in filing her application. This weighs against the Applicant being granted a further period to make her application.
Whether the person first became aware of the dismissal after it had taken effect
[23] Neither party has disputed that the alleged dismissal took effect on 14 January 2021, and no submissions have been made by the Applicant to the effect that she was not aware of her dismissal at that time. Accordingly, the Applicant had the full 21 day period to file her application and this matter weighs against the grant of a further period, albeit slightly.
Action taken to dispute the dismissal
[24] The material filed by the Respondent evidences that the Applicant sent various pieces of correspondence to Ms Stevens/Pillsbury, in the period following her alleged dismissal. This correspondence can be summarised as follows. On 14 January 2021 at 2:07 and 2:10am: the Applicant sent correspondence to the Respondent, outlining various amounts said to be owed to her and stating that: “I appreciate the cooperation and anticipate your call to end the employment professionally”. Also on 14 January 2021 at 6:33pm Mr JP Diaz on behalf of the Respondent replied to the Applicant’s email, stating he had not gone over the details of any paperwork yet, and planned to have it settled that day. That email concluded with a request to “sync up Monday” and that everything should be finalised by then. The Applicant responded at 6.56 pm, confirming receipt of this email.
[25] On 17 January 2021, the Applicant sent correspondence to the Respondent, seeking a copy of her contract and requesting a meeting to discuss her dismissal. On 18 January 2021 the Respondent replied via Ms Stevens, advising the Applicant that she worked for Electric Ecommerce as an independent contractor and not for Sitejabber. The email also advised that the Applicant’s payroll details were being finalised and that the Respondent would be in touch with the Applicant the following day.
[26] On 19 January 2021 Mr Diaz on behalf of the Respondent emailed the Applicant and invited the Applicant to the office at 1.00 pm on 20 January 2021 to finalise her exit paperwork.
[27] The Respondent also tendered an email sent to the Applicant on 21 January 2021, setting out minutes of the exit interview. The notes stated that the Applicant declined to sign the exit document and had stated she would have her “attorney” reach out to the Respondent. It appears that a person named John made contact with the Respondent in relation to the Applicant’s claims against the Respondent.
[28] Ms Stevens/Pillsbury tendered a response to John sent by her on Tuesday 26 January at 10.27 pm stating that his letter had been forwarded to her by Sitejabber and that the Applicant was an independent contractor engaged by Electric Ecommerce Inc, which is based in Florida. The email concludes by advising John that Ms Stevens/Pillsbury’s business partner JP Diaz would contact him shortly. A further email sent to John by Ms Stevens/Pillsbury on 8 February 2021 states that his “delusion over AU and USD is laughable and I welcome the courts”. This statement is consistent with a matter that appears to be the subject of a dispute between the Applicant and Ms Stevens/Pillsbury related to whether the Applicant’s commissions were to be paid in Australian dollars or US Dollars.
[29] On 15 February 2021, the Applicant sent a message via WhatsApp – I presume to Mr Diaz – requesting a meeting with Mr Diaz and Ms Stevens/Pillsbury to discuss a number of matters and stating that she had “asked John to hold off” to allow this discussion to take place.
[30] Ms Stevens/Pillsbury also tendered the following correspondence sent to her by email from the Applicant at 1.04 am on 16 February 2021:
“Hi Colleen,
Can you please call me? I wanted to speak with you about everything going on in hopes that with our history we can come to an agreement. I am sorry about John, he can come off a little heavy-handed as he is a criminal lawyer and one of the top criminal lawyers in Australia so he is quite hard when it comes to anything. We have connected friends and that is why he has decided to help me.
I would like to speak with you today over the phone or tomorrow in person. I asked him to hold off a little longer as he wants to get the officials to go ahead with a court order. ASAP Out of the love in my heart, I wanted to personally reach out and see if we can sort this out.
Kind regards,
Raquel Cerne Chaves
Founder/Head Designer
RaQ’s Designs By Cerne Chaves”
[31] The Applicant sent WhatsApp correspondence to the Respondent on 25 February 2021, stating:
“Just tried to email her [Ms Stevens Pillsbury] but the email bounced. In case it is not delivered here is what I wrote.
I am so disappointed that you didn’t take my email to negotiate seriously. I will be filing a small claim for unfair dismissal. Minimum payout is 21K (21 weeks of pay). I am not bothered with doing this in court. I will be reporting Electric Ecommerce and Sitejabber straight to the Australian fair trading commission for operating in Australia without an ABN and without registration to ASIC under the laws of the US doing business in AUS. I’ve done all the background checks. All I was asking for was my pay. I thought more of you. However, you really fooled me. Well done Cresta or Colleen whatever your name is. Through everything I helped you with. I took you into my home. I opened my doors and you still had the nerve to treat me like you did. You believe in me and you will mentor me that I was like a little sister. What bs. I actually don’t care any more. I wish you all the best in the US.”
[32] The Applicant sent email correspondence on 28 February, stating that the amount she is owed by the Respondent is $8,309.15 and attaching a spreadsheet in support. The Applicant also sent text messages sent to her by Ms Stevens/Pillsbury on 1 March seeking to have discussions with the Applicant and making various statements to the effect that there was a place for the Applicant in her company, but this was not the way to do it and asserting that the Applicant was an independent contractor and owed nothing other than her last pay.
[33] Ms Stevens/Pillsbury can have been in no doubt that the Applicant was aggrieved at the manner in which her relationship with the Respondent ended and that the Applicant intended to pursue her asserted rights and entitlements. These matters weigh in favour of a further period being granted.
Prejudice to the employer
[34] Other than prejudice associated with having to defend the application, which would exist if the application had been made within time, the Respondent did not identify any particular prejudice because of the delay in the Applicant lodging it. Further, the fact that Ms Stevens/Pillsbury has relocated to the United States is not a basis for finding that the Respondent has been prejudiced by the delay given that there is no evidence of reliance by Ms Stevens/Pillsbury on the fact that the Applicant had not filed an unfair dismissal application prior to her decision to relocate.
[35] The mere absence of prejudice is not a basis for a further period to be granted and is a neutral factor.
Merits of the application
[36] In the matter of Kornicki v Telstra-Network Technology Group6 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”7
[37] After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. I accept that the Applicant’s case is not without merit. As I have previously observed, Ms Stevens/Pillsbury’s grasp of employment law in Australia leaves something to be desired. In particular, there are contradictory statements about the Applicant’s status in documentation prepared by the Respondent.
[38] However, it is also arguable that the Applicant’s issues are related to her contract and would be more appropriately pursued in a court on the basis that it is not appropriate to use an unfair dismissal application to pursue unpaid wages and entitlements. There is nothing preventing the Applicant from pursuing such an application regardless of whether she is granted a further period in which to make her unfair dismissal application.
[39] Accordingly, I am of the view that the merits in the present case are a neutral consideration.
Fairness as between the person and other persons in a similar position
[40] 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. However, cases of this kind will generally turn on their own facts.
[41] Refusal to grant a further period to a person who has chosen to directly negotiate with a former employer is not inconsistent with decided cases. In the present case, the parties have not addressed this consideration and I find that it is neutral.
Conclusion
[42] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to grant a further period for the application to be made. I therefore decline to exercise the discretion in s. 394(3) of the FW Act.
[43] Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order 8 to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on her own behalf.
Ms Stevens/Pillsbury for the Respondent.
Hearing details:
27 April.
2021.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR730593>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
7 Ibid.
8 PR730614.
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5
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