WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00152

DELIVERED : friday, 28 February 2014

FILE NO. : U 12 OF 2014

Applicant

AND

Stuart Randell @ Sacred Tattoos

Respondent

CatchWords : Industrial Law (WA) - Alleged harsh, oppressive, unfair dismissal - Application filed outside time – Application for extension of time – Principles applied – Application dismissed

Legislation : Industrial Relations Act 1979 (WA) s 29(1) & (2)

Result : Claim of unfair dismissal made out of time dismissed

Representation:

Applicant : Mr D L Brown, in person

Respondent : Mr S Randell, by written submission

Case(s) referred to in reasons:

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

Reasons for Decision

1          On 10 January 2014 the Commission received an unsigned and incomplete claim of unfair dismissal from Mr Brown.  The Registry made contact with Mr Brown and he forwarded to the Commission on 16 January 2014 a complete Notice of Application.  In the application he states that his date of dismissal was 12 December 2013.  Claims of unfair dismissal must be referred to the Commission no later than 28 days after the day the employment terminated. 

2          Mr Brown’s claim is 7 days out of time using the complete claim received on 16 January 2014. 

3          The Commission may accept a claim of unfair dismissal that was out of time if the Commission considers it would be unfair not to do so.  Accordingly, Mr Brown’s claim was set down for hearing to allow Mr Brown, and the respondent Mr Randell, an opportunity to be heard on whether it would be unfair not to accept the claim. 

The Hearing

4          On the day of the hearing Mr Brown represented himself and gave evidence under oath.  There was no appearance by, or on behalf of, the respondent Mr Randell.  Commission staff contacted Mr Randell who informed them that he was at work and unable to attend.  He had thought the hearing was on a different day. 

5          The hearing therefore proceeded in the absence of Mr Randell. 

Considerations

6          Considerations which are usually relevant in considering whether it would be unfair not to accept a claim of unfair dismissal that is out of time are discussed in the decision of the Industrial Appeal Court in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683.  These considerations, in the context of Mr Brown’s claim, are as follows. 

1. The length of the delay

7          Although Mr Brown’s claim states that his dismissal occurred on 12 December 2013, when he gave evidence under oath, he was not sure of the date and indicated it could have been earlier, perhaps 8 December 2013.  In the end, it is not possible to decide with certainty the date of the dismissal.  Accordingly, it is not possible to decide with certainty the length of the delay. 

8          Therefore, if the date of termination was 12 December 2013 there is a delay of approximately 7 days longer than the 28 days after his employment terminated, being the period between 12 December 2013 and 16 January 2014; but it may be 11 days if the date of termination was 8 December 2013.  In either case, it is not an overly long delay relative to the 28 day period prescribed under the Industrial Relations Act 1979. 

2. The reasons for the delay

9          Mr Brown’s evidence is that he made contact with the Commission ‘sometime in December’ and when he was advised that there was a $50 filing fee, he did not have the money.  He gave evidence that since 2009 he has had a number of health issues which he believes he has now overcome, however he is on a pension of $470 per fortnight and has a wife and two children.  Mr Brown’s evidence is supported by the application to waive the fee he attached to his claim of unfair dismissal.  I am inclined to accept Mr Brown’s evidence that the reason for the delay was his inability to pay the filing fee.

10       I note that Mr Brown’s Notice of Application and application to waive the fee were signed on 13 January 2014 and the schedule of particulars attached to it was signed on 28 December 2013.  This is consistent with his evidence that he made contact with the Commission in December and was sent the paperwork.  The latter date shows that Mr Brown did commence the process to challenge his dismissal within the 28 day period, even though he did not refer his claim to the Commission within the 28 day period.  This supports accepting his claim out of time.

3. The merits of Mr Brown’s claim

11       When considering whether it would be unfair not to accept Mr Brown’s claim of unfair dismissal out of time, it is also relevant to make some assessment of the merits of his claim because it would not be unfair to reject a claim that is out of time if the claim could not succeed anyway.  Similarly, it might be more difficult to refuse to accept a claim that is out of time if it appears to be a strongly arguable case of unfair dismissal. 

12       Mr Brown has only outlined what his case would be if his claim is accepted.  His evidence was that he and Mr Randell have had a long association.  Mr Brown stated that for approximately 12 months before his dismissal, he had worked for Mr Randell on Sundays.  However, at some time in November 2013 Mr Randell had told Mr Brown he would be put on a roster and become fulltime ‘a few days a week’.  Mr Randell had given the keys to the business to Mr Brown.  Mr Randell used Mr Brown’s name on his website.

13       Mr Brown says he has no idea why he was dismissed, apart from him not going in to work on the Wednesday and Thursday however, he didn’t have a roster and did  not have any shifts.  On each occasion he worked other than Sundays, Mr Randell would pick him up to go to work; on these two days, Mr Randell didn’t pick him up.  It was only those two days he didn’t work; before then he had worked every day for 10 days in a row.

14       On the day that he was dismissed Mr Randell had said to him that he couldn’t afford to pay him anymore.  Mr Brown’s evidence is that it was ‘completely out of the blue’.  In his view, there was no reason for him to have been dismissed.  Mr Brown’s evidence is that he has been a tattoo artist for approximately 40 years and he has a good reputation.  Mr Randell had at one stage been his apprentice.  He feels the dismissal is unfair because he believed he had achieved fulltime employment and was now able to earn a proper income. 

15       Mr Randell has filed a Notice of Answer, and Mr Brown gave evidence in response to the contents of it. 

16       Mr Randell’s primary opposition to Mr Brown’s claim of unfair dismissal is that he believes Mr Brown was an independent contractor.  Mr Randell writes that he contracted with Mr Brown to perform tattooing services under a contract for services on Sundays and on such other occasions that Mr Randell required, and that Mr Brown was available, for such hours as agreed from time to time and at the rate of 70% of the payment Mr Brown received for each tattoo job that he undertook. 

17       Mr Brown initially stated that the submission that he was a subcontractor ‘could possibly be true’.  However, he subsequently said if he had been a contractor then he would be handling the money but it was Mr Randell who was handling the money: Mr Brown would put the money into Mr Randell’s account and Mr Randell paid him from that account.  Therefore he believed he was not a contractor, although he said his work on Sundays would be contracting because he was paid at the end of each shift. 

18       My understanding of Mr Brown’s evidence, at this preliminary stage, is that Mr Brown gave all of the money he received from clients to Mr Randell.  The contract he had with Mr Randell was that he would receive 70% of each fee.  Mr Brown showed the book in which he wrote down his attendance times and the clients he tattooed; the pages of the book were headed ‘Invoice/Statement’.  Mr Randell had accompanied him to a bank where Mr Randell opened a bank account into which his money would be paid; the name of the account was not Mr Brown’s own name but in the name of AAA Australian Tattoo Crew.  Mr Brown performed his work in Mr Randell’s premises.  Mr Randell told Mr Brown when he would work, and indeed collected him from his house and drove him to work and took him home again subsequently.  Mr Brown used his own hand tools, however Mr Randell supplied the photocopier, thermal copier and inks, although Mr Brown preferred to use his own inks.  Mr Randell provided the alcohol, the wash and sterilising equipment.  

19       Mr Randell’s Notice of Answer then continues that even if Mr Brown had been an employee, his employment was always intended to be on a trial basis.  In his evidence during the hearing, Mr Brown denied that a trial had formed part of any discussions between himself and Mr Randell regarding him becoming fulltime. 

20       Mr Randell’s Notice of Answer also says that it was intended that Mr Brown was always intended to be a casual and the hours he would work would be variable.  Mr Brown said he did not have anything to say about this.  

21       Mr Randell’s Notice of Answer also stated that the reason why he terminated Mr Brown’s contract for services, or his casual employment, was that in Mr Randell’s opinion the relationship was not working to his satisfaction.  There was not a sufficient number of clients coming to the shop for a tattoo that would justify keeping him on. 

22       Mr Brown responded that he did not believe there were insufficient customers; there were 10 customers between 27 November and 1 December 2013 and he did not see why he was not able to be employed.  He also said that if Mr Randell could not have afforded to retain his employment at the rate of 70% of earnings, Mr Brown would have been prepared to accept a lesser percentage, perhaps 60% or even 50%, rather than be dismissed, but there was no discussion about it. 

23       Mr Randell’s Notice of Answer also stated that in addition to the insufficient number of clients, on or about 11 or 12 December 2013 the managing agent for the owner of the premises advised Mr Randell that when he called in at the business on or about 11 or 12 December 2013 he noticed Mr Brown smoking what appeared to be a cigarette and he smelled the aroma of burning cannabis coming from Mr Brown’s cigarette.  The managing agent informed Mr Randell that smoking cannabis and the possession of cannabis in or immediately adjacent to the premises was not only illegal but constituted a breach of Mr Randell’s lease which could lead to the termination of the lease.  Mr Randell said that he had previously advised Mr Brown against this. 

24       Mr Brown refuted the allegation.  His evidence is that he does not smoke at all; while he has been known to smoke pot and doesn’t mind it, this allegation is untrue.  At one stage he did smoke a cigar which he got from the office when Mr Randell was handing them out.

25       Mr Randell’s letter continues that he had previously advised Mr Brown that the possession of, and the smoking of, cannabis in or immediately adjacent to the business premises was a breach of the lease, and was illegal, and he was not to do it.  Mr Randell concludes that the contract, or the employment, had not worked to his reasonable satisfaction, especially in relation to the work available.  The casual basis was to see how things went in the short term and whether the amount of work justified it continuing; in his opinion it did not.

26       In addition, Mr Randell was most concerned that if the managing agent told the owner of the premises that Mr Brown had smoked cannabis in or immediately adjacent to the premises, the owner might seek to terminate Mr Randell’s lease.

27       Mr Randell has attached to his Notice of Answer an undated statement ‘To whom it may concern’ from the managing agent stating what he had seen, and smelled, when Mr Brown was smoking when he visited the shop on 11 or 12 December 2013.  The statement also states that Mr Brown had proceeded to use Mr Randell’s computer internet service and whilst doing so made verbal and vulgar comments, including the full repertoire of swear words heard in the English language, regarding the topics he was looking at on the internet; to make matters worse,  there were paying customers in the store at the time who had to hear what Mr Brown was saying.

28       At this preliminary stage I would not rate the merit of Mr Brown’s claim of unfair dismissal as strong.  Mr Randell’s Notice of Answer is clearly written and shows what his evidence is likely to be if this claim proceeds to a hearing.  The dismissal may have come out of the blue, however Mr Randell would be entitled to dismiss Mr Brown for lack of work if he shows there were insufficient customers from a business point of view to retain Mr Brown.  That assessment is Mr Randell’s to make.  The ‘fulltime’ employment had commenced only recently and it is not unlikely that its continuation would depend upon the numbers of customers, even if the word ‘trial’ was not used as Mr Brown’s evidence indicates.

29       Importantly, if Mr Brown was an employee, his employment was most likely to have been casual with varied hours: Mr Brown himself described his employment as casual with varied hours in the schedule of particulars attached to his Notice of Application and Mr Randell’s Notice of Answer states that Mr Brown was a casual.  The word ‘casual’ in the context of an employment relationship may have many meanings, but it will be more difficult for Mr Brown to argue his dismissal was unfair if he was indeed a casual employee with varied hours.

30       Also, I do attach weight to the managing agent’s statement.  The fact that the conduct he alleges occurred on the day before, or the day of, the termination, and Mr Randell relies on it together with the insufficient number of clients to justify the dismissal, makes it a significant issue.  Even though Mr Brown refutes the specific allegation, Mr Brown did not suggest the statement itself was a fabrication and I accept the statement as representing what the managing agent’s evidence is likely to be if this claim proceeds to a hearing and he is called to give evidence.  The allegation is a live issue and Mr Randell would be entitled to dismiss Mr Brown for the incident if the managing agent’s evidence in a hearing is preferred over Mr Brown’s evidence, particularly if Mr Randell had previously told Mr Brown that this conduct was not acceptable. 

4. Action taken by Mr Brown to contest the dismissal other than making the claim

31       Mr Brown did not take any action to contest the dismissal other than making the claim.  He did not inform Mr Randell that he contested his dismissal either at the time it occurred, or subsequently. 

5. Prejudice to Mr Randell including prejudice caused by the delay

32       Mr Randell’s letter does not specifically say that he would be prejudiced by the Commission accepting Mr Brown’s claim out of time.  I accept, however, that Mr Randell would be put to the time and trouble of attending the Commission to oppose the claim, including perhaps asking the managing agent to give evidence.  Necessarily, this would take Mr Randell away from his business.  It is not clear that Mr Randell would otherwise suffer any prejudice from the delay in making the claim. 

6. Considerations of fairness as between Mr Brown and other persons in like position

33       There is no suggestion that there are other employees in a similar position to Mr Brown.  This consideration does not assist in deciding whether it would be unfair not to accept the claim out of time. 

Conclusion

34       The starting point in considering whether it would be unfair not to accept Mr Brown’s claim out of time is that the legislative time limit of 28 days after his employment terminated should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.  Special circumstances are not necessary but the Commission must be positively satisfied that the prescribed period should be extended.  

35       The decision whether it would be unfair not to accept the claim involves notions of fairness.  In the Malik case referred to earlier, it was said this means fairness to all, obviously to Mr Brown and to Mr Randell, but also to the public interest and to the due and efficient administration of the jurisdiction of the Commission which should not be burdened with unmeritorious stale claims.

36       In this case, it is in Mr Brown’s favour that he commenced the process of challenging the fairness of his dismissal within the 28 days by completing part of the Notice of Application.  The fact that he could not afford the filing fee, which stopped him completing and filing the claim within the 28 days, should not be held against him, although this is only one of the matters to be taken into account.  

37       Mr Randell does not indicate that the length of the delay itself is a reason for it not to be accepted out of time; his objection to accepting the claim out of time is that in his view the claim is without merit, primarily because there was no employment relationship. 

38       It is important to note that at this preliminary stage there is no obligation on Mr Brown’s part to establish any degree of merit (see the Malik case referred to earlier, per Justice Steytler at paragraphs [25]-[27]).  This hearing about whether it would be unfair not to accept the claim out of time, not to decide the claim. 

39       Nevertheless, it is clear Mr Brown’s claim does face some difficulties.  The issue of whether he was an employee or a contractor is not clear.  The distinction in law between a person being an employee or a contractor is not straightforward and Mr Brown may be excused for his uncertainty.  However, if he was a contractor on Sundays as he says, it is not clear to me why he would not be a contractor at other times – the issue will be decided on the totality of their relationship and not merely whether he was paid at the end of each shift. 

40       Mr Randell’s Notice of Answer does not give any detail why he believes Mr Brown was a contractor; a person is not a contractor merely because it is alleged that he is a contractor.  Mr Brown’s evidence shows some indicators that he was, and other indicators that he was not, a contractor.  Therefore at this preliminary stage it is not at all clear whether Mr Brown was an employee or a contractor.  

41       Even if Mr Brown was an employee, his likely status as a casual with varied hours does not assist him, and Mr Randell’s knowledge of the business and its costs, would lend weight to his evidence about insufficient customers over Mr Brown’s evidence.  The likely evidence of the managing agent would also be problematic for Mr Brown’s claim. 

42       Ultimately, the Commission must be positively satisfied that the prescribed period should be extended and taking all of the above into consideration, I am not positively satisfied that it should be.  Mr Brown has not shown it would be unfair not to accept his claim out of time.  Therefore, the claim of unfair dismissal made out of time will be dismissed.