Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed outside of statutory timeframe - application for extension of time - not satisfied there are exceptional circumstances - extension of time refused.

• [1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 4 February 2022.

• [2] On or about 2 July 2012, noting that was the date that the Applicant put in her F2, and there was no challenge to that in the evidence, Ms Andrea Fried (the Applicant) commenced employment with Travel Management Services Pty Ltd (the Respondent). She was employed in the position of a travel consultant.

• [3] The reason given by the Respondent for the decision to terminate the Applicant's employment was clearly set out in the F3, and to quote from that:

"The applicant was dismissed because she failed to comply with the lawful and reasonable direction to be vaccinated and was unable to perform the inherent requirements of her role."

• [4] The factual position, which isn't in dispute, is that on 13 October the Respondent met with the Applicant, advised that there was a Victorian public health order which required she be vaccinated against COVID‑19, requiring her first dose of the vaccination by 22 October unless she had a medical exemption.

• [5] There is some dispute about whether the Applicant said she would not be vaccinated or ever be vaccinated, but there is no doubt on the evidence that the facts are that she wasn't vaccinated up until the time of 24 December when she was dismissed, and it is also common ground that the Victorian public health order applied to her. She was required to be vaccinated in order to perform her duties. That was the reason for the dismissal.

• [6] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application was lodged on 18 January 2022, so the application was filed outside of the statutory timeframe. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant's employment was terminated by the respondent with effect from 24 December 2021. There is no dispute about that date.

• [7] Based on the termination date taking effect on 24 December 2021, the application for remedy should have been lodged by no later than 14 January 2022. The application was therefore lodged outside of the time prescribed. The application was made in effect four days after the last date in which it could have been made.

• [8] 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.

• [9] 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.

• [10] 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.

• [11] Each of the matters need 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, or ask whether collectively the matters show exceptional circumstances.

• [12] 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. I must be satisfied that taking into account s.394(3) that there are exceptional circumstances.

• [13] I will now consider those matters in the context of the application.

• [14] Firstly, subsection (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.

• [15] In this matter, I have considered the Applicant's evidence on the reason for the delay. I accept that, on her evidence, she was affected by COVID up until at least 29 December, but on her own evidence, from 29 December she was able to engage in some activities, which activities would have been such that since she could engage in those activities, such as contacting the ATO, was no reason to think that she could not have engaged in the activity of lodging an unfair dismissal application.

• [16] Moreover, during cross-examination the Respondent took the Applicant to an email that was sent by her on 23 December, which is marked as R1, which was sent to her employer. It raised issues about getting paid out for annual leave, indicated that she would be seeking to collect all her personal belongings from the office on 27 December, and so on. I agree with the tenor of the submissions from the Respondent that this is evidence that the Applicant was certainly, even from that date, 23 December, able to engage in the activity of sending that email, and no indication that she was limited in her ability to do so. I think the state of the evidence is that from 23 December, even a day before she was dismissed, she was in the position to lodge an unfair dismissal application.

• [17] The Applicant then rang the Fair Work Ombudsman, on her evidence, about a week after 10 January. There was some variation in that evidence today, but in any event it was some time early in January. There is no reason in the evidence that the Applicant could not have rung the Fair Work Ombudsman, or the Fair Work Commission for that matter, sooner. There is no reason she could not have looked at the websites for the Fair Work Commission or the Fair Work Ombudsman sooner than that and used the various portals to lodge an unfair dismissal application through the Fair Work Commission.

• [18] I accept that there is a certificate - and this is a significant factor - from the Applicant's psychologist indicating that she was incapable of work until 1 February 2022, but again I agree with the tenor of the Respondent's submission that on the Applicant's own evidence she was able to operate to a level, in that period at least from 23 December, where lodging an unfair dismissal application was certainly not beyond her, and I am just not satisfied with the evidence that the fact that she was affected by COVID was of such a magnitude that she was not able to do so, because it is contrary to the concrete evidence before me.

• [19] Indeed, in my view, the real reason for the delay is consistent with what the Applicant included in her witness statement at paragraph 8, as follows:

"I was unaware that there was a time limit on lodging the application. Had I known I would have lodged it in time."

• [20] That is the true state of the evidence in respect of the application, and I think really the main reason. As was pointed out by the Respondent, it has been the consistent position in decisions of the Commission that ignorance of the timeframe is not an acceptable reason for the delay. That deals with what I needed to say about the reason for the delay.

• [21] Having considered the evidence, in the circumstances I am not satisfied the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs against the Applicant in this case.

• [22] Turning to the second point, (b) whether the applicant first became aware of the dismissal after the date it took effect. Turning to that question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 19 November 2021 that her employment would end on 24 December 2021. The Applicant was given five weeks' notice or so that her employment would terminate at that time. In those circumstances, the Applicant was well‑aware that she was terminated before the actual termination date on 24 December, and in those circumstances that is a matter that weighs against the Applicant in this case.

• [23] Turning to action taken by the Applicant to dispute the dismissal. The evidence was essentially that there wasn't any action taken by the Applicant to dispute the dismissal. There was evidence that there was a phone call made to a lawyer some time early in January, but there was no engagement of that lawyer. The Applicant's evidence was to the effect that the legal firm indicated that she would need a contract with them. She chose not to do, as she was entitled to do, but it falls short of any evidence of action to dispute the dismissal.

• [24] The Applicant has also contacted the Fair Work Ombudsman, and her evidence was that she did that later in January, and then she moved to ultimately lodge the unfair dismissal application after that, but beyond that no other action was taken. The Applicant did engage with the employer about her disputes about her sick leave and superannuation and so on, but this was not action, in my view, taken by the applicant to dispute the dismissal per se. In the circumstances, that's a matter that weighs against the Applicant.

• [25] In respect to 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. No evidence was brought on the issue of prejudice. The Applicant not surprisingly had nothing to say about the matter. In the circumstances, I am not satisfied that there is prejudice against the employer, and that's a matter that is neutral in the instant case.

• [26] 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 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, and having done that, my observations on the evidence are these: that it's common ground that the Victorian public health order required the Applicant, as a retail worker, to have her first dose of the vaccine by 22 October 2021, unless she had a medical exemption.

• [27] The Applicant has advised the employer she didn't have the vaccine and that she was going to seek a medical exemption. There were numerous attempts, on the evidence by the employer, to obtain the necessary documentation, either proof of vaccination or an exemption from the Applicant, and the Applicant provided neither, and that's not surprising, because it is not disputed by the Applicant that she has neither a medical exemption nor vaccination up until 24 December.

• [28] She was required to return to the workplace, but could not do so because of the operation of the Victorian public health order, and in all of those circumstances it is more than likely to be found that there would be a valid reason for the dismissal, because the Applicant was unable to perform the inherent requirements of the role. To be clear, that is not a finding. I am just saying that that is likely to be the case.

• [29] The employer claims that the dismissal was consistent with the Small Business Fair Dismissal Code, and there is an arguable case that that is so. However, in the event that the Small Business Fair Dismissal Code's arguments were not successful, then the considerations would turn to s.387. As I said earlier, in that respect there is likely to be found a valid reason for dismissal.

• [30] As to procedural fairness, the Applicant was on notice of the requirement from 13 October that she was required to get the vaccination or be in breach of the Victorian public health orders, and then on 19 November she was provided with five weeks' notice and dismissed at that time.

• [31] There are some difficulties with the procedure that was followed, certainly the most significant being that the Applicant was providing medical certificates during the time certifying she was unable to work, and there is a serious question that arises as to the procedural fairness of dismissing the employee at the time that she was dismissed given she was unable, on the admitted evidence before me, to attend work during that time. In that sense, while accepting that there was a failure to be vaccinated or provide an exemption, contrary to public health orders, it is arguable that the dismissal was procedurally unfair, and that would be a factor that would weigh in the consideration towards the Applicant, but not necessarily indicating that she will be successful.

• [32] There is no need for me to re‑state it is only appropriate that I make an assessment about the merits of the case on the limited material available. Having done so, it seems to me therefore that the Applicant's claim is, on a preliminary assessment, not without merit, but that's not to suggest that it would succeed. I am satisfied for the reasons that I have alluded to that there is at least some merit, which would give the Applicant justifiable reason to pursue her unfair dismissal claim.

• [33] I neglected to mention that a further factor favouring a finding the claim is not without merit is connected to the circumstances in which the employee was purported to be stood down for a period of five weeks and not paid sick leave during that period, which would also be a factor that would weigh into the consideration in terms of fairness.

• [34] To conclude, 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 there is at least some merit, which would give the Applicant a justifiable reason to pursue her unfair dismissal claim. In the circumstances, that is a matter that weighs in favour of the Applicant.

• [35] 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 in matters previously decided by the Commission. It may also relate to the position of various employees and the employer responding to an unfair dismissal application.

• [36] The Respondent in this matter indicated that this factor was not relevant, because there were no other employees in a similar position with the Respondent. The Applicant didn't make any submissions on the point. Ultimately, neither party brought to my attention any relevant matter concerning that consideration, and I am unaware of any relevant matter and I therefore consider this to be a neutral consideration.

• [37] 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 in exceptional circumstances the right to bring the action will be lost. The 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.

• [38] Weighing all of the matter that I must weigh, and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case warranting consideration of the exercise of my discretion to allow a further period. As I have indicated in respect to the reason for the delay, I am not satisfied that there is an acceptable reason, and that weighs against the Applicant.

• [39] As to when the Applicant first became aware of the dismissal, that factor weighs against the Applicant. As to the lack of action taken to dispute the dismissal, that factor also weighs against the applicant. As to the merits, for the reasons that I have enunciated, that is a factor that weighs in favour of the Applicant, and all the other matters are neutral.

• [40] In those circumstances, as I have indicated, I am not satisfied there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed in making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will be separately issued.

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