Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time.

• [1] Mrs Candy Parker (Mrs Parker or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is BHP Billiton Iron Ore Pty Ltd (the Respondent).

• [2] Mrs Parker's application says she was notified of her dismissal on 15 December 2021 and her dismissal took effect the same day. Her application was made on 6 January 2022.

• [3] The application has been made more than 21 days after the alleged dismissal took effect.

• [4] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position."

• [5] Consequently, on 17 January 2022 the Fair Work Commission's staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

• [6] The Fair Work Commission's correspondence to the Applicant explained that if she relies on a medical condition as the reason for the delay, she should supply a medical certificate or report which specifically explains why her medical condition prevented her from making her application within time.

• [7] The Applicant provided a written response on 20 January 2022.

• [8] The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.

• [9] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

• [10] The Applicant explains the reason for the delay in making her application was that initially she was not going to lodge an unfair dismissal application as it was her choice not to follow the Respondent's directives in regard to COVID-19 vaccines and she accepted the consequences. However, she says she is hoping to get her job back or compensation when the COVID-19 vaccine mandate ends or when an alternative option becomes available.

• [11] The Applicant explains she is nine weeks pregnant and has been quite sick and unable to do much else other than care for her three-year-old.
• [12] An employee changing their mind about making an unfair dismissal remedy application is not an acceptable reason for delay in making the application.

• [13] The Applicant has not provided any independent medical evidence that her sickness was so severe that it prevented her from making the application within time. Illnesses is not uncommon and without more evidence is not an acceptable reason for delay in making the application.

• [14] The reasons for the delay are not exceptional circumstances.

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

• [15] The Applicant became aware of her dismissal on the day it took effect.

• [16] The Applicant did not take any other action to dispute her dismissal.

Prejudice to the employer (including prejudice caused by the delay)

• [17] The delay in making the application in this case will not prejudice the Respondent.

• [18] The application demonstrates the Applicant was a Production Technician working in Port Hedland.

• [19] In November 2021 the Western Australia Government issued the Resources Industry Worker (Restrictions on Access) Directions (the Directions) which applied to both the Applicant and the Respondent.

• [20] In summary the Directions provide for a prohibition on workers subject to the Directions attending the workplace who are not vaccinated, and the Respondent is obliged to collect a record of their employees' COVID-19 vaccination and not allow them in the workplace if they are not vaccinated.

• [21] The Directions required the Applicant as a resource worker to have received a first dose of a COVID-19 vaccination by 1 December 2021 to be able to attend the workplace.

• [22] In her application the Applicant explains that she was advised that she would need to have her certificate of vaccination uploaded on 15 December 2021 before returning for work on her next swing. She says she was aware of the mandate rules and had received a letter. She says she was stood down without pay from 1 December 2021 and was advised that there would be a show cause meeting to follow.

• [23] The Applicant did not provide evidence to the Respondent that she had received her first COVID-19 vaccination. The Applicant did not provide a reasonable excuse for failing to comply with the Directions which applied to her and applied to the Respondent and so ultimately the Respondent determined it would dismiss her from her employment.

• [24] The Directions required the Applicant to have her first COVID-19 vaccination by 1 December 2021. She had been made aware of this in advance. She apparently was not vaccinated by this date and so could not attend the workplace thereafter. Consequently, there is little merit in this application and it is unlikely to succeed.

Fairness as between the person and other persons in a similar position

• [25] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

• [26] The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for her to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.

• [27] Consequently, the Fair Work Commission is not empowered to extend time for the Applicant to make this application.

• [28] This application has been made out of time and so must now be dismissed. An Order [PR739236] to that effect will now be issued.

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