Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Mr Daniel James Hunter (the Applicant) applied for an unfair dismissal remedy, having been dismissed from Karara Mining Ltd (the Respondent) on 15 December 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.

• [2] The Respondent, a mining company, submitted that it was subject to the direction of the Western Australian Chief Health Officer, who had issued a direction that required FIFO workers to be partially vaccinated by 1 December 2021 and further vaccinated by 1 January 2022, to access mine sites. The Applicant was dismissed on 15 December 2021, because of his failure to provide proof of his first COVID-19 vaccination by 26 November 2021. The Applicant submits that he did not become aware of his dismissal until after 15 December 2021, hence why his unfair dismissal application was made late.

• [3] In the Applicant's case, he was provided with a further 14 days to provide proof of vaccination or medical exemption, having been demobilised from the mine site on or around 30 November 2021. The Applicant had taken annual leave for that period post demobilisation.

• [4] The Applicant submits that he grew suspicious that his employment had been terminated after not hearing from the employer once his annual leave had been exhausted on 15 December 2021. The Applicant was unable to recall precisely when he had become aware that he had been dismissed. The Applicant asserts that he checked an email account that had previously been blocked and found that his dismissal letter had been sent to that account. The Applicant presses that the Respondent knew he had experienced trouble with that email account in 2019, because he had communicated that to the Respondent and asked that it utilise his father's email address for correspondence that was being sent at that time.

• [5] The Applicant therefore attributes the one-day delay in filing his application, on the Respondent not taking action to ensure he received timely notification of his dismissal.

• [6] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other matters are not relevant for the purpose of the application.

• [7] For the application to now proceed, it is necessary for the Applicant to show that his application was made in time or to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

• (f) fairness as between the person and other persons in a similar position.[1]

a) when did the Applicant's dismissal take effect;

b) whether the unfair dismissal application was made within 21 days after the dismissal took effect; and

c) if it was not, whether:

1. there are exceptional circumstances that warrant an extension of time being granted; and
2. it is fair and equitable to grant that extension.

• [9] The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.

• [10] The Applicant commenced work as a Technician Electrical & Instrumentation on 23 December 2019 at the Karara mine site (located 430km North East of Perth) on a Fly in Fly out basis.

• [11] Prior to commencing work with the Respondent, the Applicant was required to complete some forms. Whilst the Respondent had sent the forms to the Applicant's email address that had been provided by him at that time, the Applicant wrote to the Respondent by email dated 17 October 2019, informing the Respondent of the following:

I got home from overseas yesterday, tried sign into my email, to find it's been currently blocked due to travelling (changing of sim cards etc). I'm now just waiting on verification from the email server....

If possible could you please forward the email on here with the attached forms, so I can get on top of this

I've CC'd my fathers other email into this, just to make sure we get it ASAP.

Apologies for the inconvenience, Hope to hear from you soon.

• [12] The Respondent submitted that following the direction from the Chief Health Officer of Western Australia regarding COVID-19 vaccination on 8 October 2021, a companywide communication was sent from the Respondent's Registered Manager advising employees of the government mandate. It stated that all employees would be required to have the first dose of the vaccination by 1 December 2021.

• [13] On 22 October 2021, the Chief Executive Officer of the Respondent sent a companywide email advising employees of the requirements and their obligation to provide proof of first dose vaccination by 26 November 2021, in order for the Respondent to meet the mandate requirements. This communication also outlined that those employees who did not provide proof of vaccination would be unable to operate on the Respondent site.

• [14] The Applicant acknowledged that information regarding the vaccination direction was provided at pre-starts but stated that there was a lot of information being provided and it was somewhat confusing.

• [15] On Friday, 29 October 2021, the Applicant spoke to his Electrical Supervisor, Mr Zak Vanden Bergh. According to the Respondent, the Applicant wanted to know the amount of annual leave he would have upon termination of employment. The Applicant was referred to the Respondent's Human Resources Department (HR) regarding this query.

• [16] The Respondent submitted that on Monday, 1 November 2021, the Applicant spoke to Ms Claudia Campbell, Senior HR Business Partner, and queried the Respondent's position on vaccination. Ms Campbell was said to have referred the Applicant to the previous company correspondence to employees which confirmed the company position that any employee who had not sent through evidence of their first dose of the COVID-19 vaccination would need to be demobilised from site on the 30 November (before the 1 December 2021 cut-off).

• [17] On Tuesday, 2 November 2021, the Applicant and his Electrical Supervisor, were said to have visited Ms Campbell to discuss how time off in lieu is paid to employees. During the discussions, the Applicant was asked again if was intending on being compliant (presumedly in relation to providing evidence of vaccination), and the Applicant purportedly chose not to comment on his vaccination status.

• [18] On 4 November 2021, the Respondent issued a further 'COVID-19 Vaccination Communication' announcing a 'COVID-19 Vaccination Incentive payment' whereby employees would receive $100 upon submission of proof of vaccination. In addition, the communication outlined the following:

Company position on Failure to Provide proof of COVID-19 Vaccination

• First Dose: By 26 Nov 2021, if an employee did not provide evidence of their first COVID-19 Vaccination to the Company (via: HSEkarara@kararamining.com.au), employee's site access will be removed, the employee will be unable to access site from 1 December 2021 following government's directives. The employee will be placed on leave without pay (or annual leave at the request of employee) from date of site removal and will be required to provide proof of first vaccination within 14 days. Failure to comply with this requirement will result in termination of employment.

• Second Dose: By 25 Dec 2021, if an employee did not provide evidence of their full COVID-19 Vaccination to the Company (via: HSEkarara@kararamining.com.au), employee's site access will be removed, the employee will be unable to access site from 1 January 2022 following government's directives. The employee will be placed on leave without pay (or annual leave at the request of employee) from date of site removal and will be required to provide proof of full vaccination within 14 days. Failure to comply with this requirement will result in termination of employment.

If any employee has obtained Medical Exemption on COVID-19 vaccination, the exemption must be provided no later than 26 November 2021 to Health & Safety. KML COVID Management Committee will make sure the appropriate risk assessment is conducted ensuring the health and safety of the individual as well as the wider workforce on site. Failure to provide a medical exemption by this date will be considered as failure to provide COVID-19 Vaccination. Exemptions are to be sent to HSEkarara@kararamining.com.au

• [19] The Respondent submits that the abovementioned information was provided in pre-start information for all crews on 8, 9,10, 11, 12 ,13 14, 15,16 and 17 November 2021.

• [20] The Respondent notes that on 15 November 2021, the Applicant contacted Ms Campbell and requested an estimate payout figure if he was to resign with his last day being 30 November 2021. On 23 November 2021, the Applicant emailed Ms Campbell again, requesting estimated pay amounts following their previous conversation. Ms Campbell responded on that same day stating:

[U]nfortunately payroll are unable to run this payslip but have provided the figures for your annual leave balance at 30 November 2021. If you choose to resign due to your decision not to be vaccinated, the Company will pay out your 4 weeks' notice in lieu, all ordinary time owing and 346.89 hours of annual leave.

• [21] The Respondent explained that employees who did not provide proof of vaccination by 26 November 2021 were paid up to 1 December 2021. In the Applicant's case, he was provided with a further 14 days to provide proof of vaccination or medical exemption. Employees were advised they could access their annual leave entitlements or 'leave without pay' and to advise HR which option they wished to avail for this period.

• [22] The Applicant accessed annual leave for this period and purportedly had this pre-approved in Definitiv (presumedly the Respondent's pay roll system), before his removal from site.

• [23] The Applicant states that notwithstanding his communications with the Respondent and those provided by the Respondent, there was a lot of confusion as to whether the Respondent would go through with the termination of employment.

• [24] Ms Campbell telephoned the Applicant on 15 December 2021, but was unable to reach him. She also sent an email attaching his letter of termination.

• [25] The Respondent notes that it administers a payroll system which is a self-service system which requires employees to update their contact details. The email address utilised to provide the letter of termination was that which the Applicant had provided as his point of contact.

• [26] It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 15 December 2021. For his part, the Applicant was unable to provide the date by which he became aware of his dismissal, stating only that it was after 15 December 2021, but he could not recall when he accessed his email to read the letter of termination.

• [27] In Ayub v NSW Trains (Ayub),[2] the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[3] The Full Bench explained at paragraph [42] of Ayub:

[42] We likewise consider that the mere delivery of a document to an employee's usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document...

• [28] The issue before me now is whether the Applicant had a reasonable opportunity to find out he had been dismissed on 15 December 2022. For the reasons that follow I am satisfied that he did.

• [29] The Applicant seems to have placed upon the Respondent a positive obligation to have: (a) updated its pay roll system to reflect the email address that the Applicant used in 2019 when communicating about the sending of relevant forms; and (b) to have contacted his father to inform him of the Applicant's dismissal, again in light of the correspondence that transpired prior to the commencement of his employment in 2019.

• [30] The Applicant had noted in this correspondence in 2019 that his email account appeared to have been currently blocked. The evidence provided does not suggest that the Applicant had, at any point, informed the Respondent that his contact details had now effectively changed such that his father's email address was to be used as his point of contact moving forward.

• [31] There was no evidence before the Commission to suggest that the Respondent's submission that it utilises a self-service pay roll system was inaccurate, or that employees were required to update their own contact details within that system.

• [32] The Respondent had commenced communication with the Applicant in October 2021, highlighting the requirements and obligation upon employees to provide proof of first dose vaccination by 26 November 2021. Throughout October and November 2021 that communication continued. The Applicant purports being confused about the communication, yet he was sufficiently appraised of the circumstances to make enquiries with HR about the amount of pay he would receive if he resigned as of 30 November 2021, and to have submitted a request for annual leave.

• [33] On 15 December 2021, the Respondent sent an email to the Applicant attaching a letter of termination. The Applicant had been informed that his employment would be terminated if evidence of vaccination was not provided in the communications delivered at pre-start. Furthermore, the Applicant had been advised verbally by Ms Campbell that if he did not provide proof of vaccination he would be called by Ms Campbell and correspondence would be sent by email. The Applicant did not challenge this evidence.

• [34] In respect of the Respondent's assertion that Ms Campbell called the Applicant on 15 December 2021, the Applicant responded that he receives many calls each day and is unable to identify whom they are from.

• [35] The Applicant was provided with a letter of termination sent to the contact details he had provided to his employer, the Respondent. In circumstances where those contact details were incorrect, it was the Applicant's responsibility to update his contact details. It was not the case that the Applicant was unaware that the continuation of his employment was at risk. The Respondent had engaged in a campaign of communicating the requirement regarding the COVID-19 vaccination over a two-month period. The Applicant had himself, evidently contemplated resigning on 30 November 2021, prior to the 1 December 2021 deadline for the provision of evidence of first dose COVID-19 vaccination.

• [36] I am unconvinced by the Applicant's assertion that he was confused as to whether he was to be dismissed. In such circumstances, I hold the view that the Applicant had a reasonable opportunity to find out that he had been dismissed. A letter was provided to the email address he had provided to the Respondent. It is accepted that in a situation where an employee is informed by email that she or he has been dismissed, the employee can usually be regarded as knowing, or having had a reasonable opportunity to know, of the dismissal when the email is received in the inbox of the employee's usual email address.[4]

• [37] Having found that the Applicant had been provided with a reasonable opportunity to find out he had been dismissed on 15 December 2021, it follows that the date when the dismissal took effect was that same date. Therefore, the Applicant's unfair dismissal application was made one day late.

• [38] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[5] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.

• [39] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[6] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[7]

• [40] In the directions issued to the parties on 17 February 2022, both were referred to s 394(3) of the Act and the meaning of 'exceptional circumstances'. Having considered the views of the parties, the materials submitted and Commission's case management file, I determined that a hearing was the appropriate course in light of s 577 of the Act.

• [41] 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.[8] 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. 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.[9]

• [42] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[10] However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[11]

• [43] The reason for the delay did not appear to be the Applicant's ignorance about the time limit of 21 days, but rather a lack of knowledge regarding the date of his dismissal. Such that he found out about his dismissal after 15 December 2022. However, I have addressed this issue at paragraphs [24] to [35] of this decision.

• [44] While sympathetic to the Applicant's circumstances and acknowledging that he is aggrieved by his dismissal, having considered the delay of one day and appreciating the circumstances leading up to it, I am not satisfied that the Applicant has provided a credible explanation for the delay, and this therefore weighs against a finding of exceptional circumstances.[12]

• 4.2 Whether the person first became aware of the dismissal after it had taken effect

• [45] As has been traversed, at all material times from the time the Applicant was notified of his dismissal on 15 December 2021, until the date the unfair dismissal application was made, the Applicant knew he had been dismissed. I therefore consider this to be a neutral factor.

• 4.3 Action taken by the person to dispute the dismissal

• [46] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[13] I have considered all submissions and the evidence in this respect. I consider there is insufficient evidence to find that the Applicant challenged his dismissal. While the Applicant queried certain information from the Respondent's HR and management prior to his dismissal, there is no suggestion that he challenged or disputed his dismissal. This weighs against a finding of exceptional circumstances.

• [47] I consider that the factor of 'prejudice' is a neutral consideration in all the circumstances.

• [48] In Kornicki v Telstra-Network Technology Group,[14] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:

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.[15]

• [49] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[16] The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

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

• [50] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[17] where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]

• [51] Based on the materials filed and the circumstances, I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed. As such, I consider it a neutral consideration.

• [52] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension. While the Applicant explained the reasons for the delay in making his unfair dismissal application, when the totality of the evidence is considered, I am unpersuaded that the Applicant's circumstances are 'exceptional'. This is notwithstanding that the delay was of one day.

• [53] There of course may be circumstances in which mere receipt of an email attaching a letter of termination may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons.[19] However, that was not the evidence which was put before this Commission. What was traversed was that the Respondent relied on the email contact details, which the Applicant had provided and sent the letter of termination to that email address. Furthermore, the Respondent had sought to call the Applicant on 15 December 2021, the same day the email was sent.

• [54] The Applicant had not checked his relevant email account at the conclusion of his annual leave, annual leave which he had requested because of the revocation of his site access. This oversight sits squarely with him.

• [55] It follows that the circumstances are such that I do not consider it fair and equitable to grant the extension.

• [56] The Applicant's application for an unfair dismissal remedy is therefore dismissed. An Order[20] will be issued with this decision.

[1] Fair Work Act 2009 (Cth) s 394(3) ('The Act').

[2] [2016] FWCFB 5500 ('Ayub').

[5] [2011] FWAFB 975; (2011) 203 IR 1 ('Nulty').

[6] [2018] FWCFB 901 ('Sotgiannidis').

[10] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 [40].

[11] Mr Ke Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[14] Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[16] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 [38].

[17] [2015] FWC 8885.

[20] PR739055.

Printed by authority of the Commonwealth Government Printer