s.394 - Unfair dismissal

Termination of employment - jurisdiction - extension of time.

• [1] Mrs Elaine McGuire (Mrs McGuire 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 St John of God Hospital (the Respondent).

• [2] Mrs McGuire was notified of her dismissal on 29 October 2021 and her dismissal took effect on 8 November 2021. This application was made on 5 December 2021.

• [3] The application has been made more than 21 days after the Applicant's 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 (the 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 14 December 2021 the Commission's staff wrote to the Applicant explaining to her the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

• [6] The Applicant responded by email on 14 December 2021.

• [7] The Respondent objects to the Commission granting an extension of time and has filed submissions accordingly.

• [8] 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.

• [9] In her application Mrs McGuire says that "...my dispute over my dismissal only came to light on the weekend of 28 Nov and I immediately contacted SJOG. I submitted F9 form on 29 November (day 21) which unfortunately was the wrong form. I received a phone call from Fairwork on 30 November to inform me of this error."

• [10] In her emailed submission on 14 December 2021 the Applicant says as follows:

"I was informed that I would not be able to attend work at SJOG as of 1 Nov 2021 because of a PHO which came into effect for tier 2 employees.

It was only brought to my attention on Sunday 28 Nov 2021 that Health Support Workers i.e. administration staff tier two was not required to have a covid-19 jab until 1 Dec 2021.

I sent an email to Colin Young on Sunday 28 Nov to point this out

I filled out a F9 application form and submitted it on Monday 29 November2021 (day 21)

I received a phone call from FairWork Commission to tell me I had filled in the wrong form and to use F2

I received an email from SJOG on Wed 30 November 2021 to say that I was correct by SJOG had changed their policy

I apologise for the delay in applying this form for the above reasons

It has been an extremely stressful time and a little confusing. It would be appreciated if you could show a little leniency with the lateness" (sic)

• [11] It seems from the Applicant's explanation that at the time of her dismissal she did not view it as unfair.

• [12] She says it was only when she became aware on the 28 November 2021 that the Public Health Order (PHO) issued by the Western Australian Government only required her to have a first dose of a COVID-19 vaccine by 1 December 2021, a month later than the Respondent had required, that she formed the view her dismissal was unfair.

• [13] The Respondent has filed a letter provided to the Applicant dated 4 October 2021 that in the second paragraph explains the PHO requires her to provide evidence of her first vaccination before 1 December 2021. The letter continues on in the third paragraph to say that the Respondent's policy has been updated and employees are required to provide evidence of the first vaccination before 1 November 2021.

• [14] An employee changing their mind after their dismissal, as to the fairness of their dismissal is not an exceptional circumstance.

• [15] If perhaps in this case the Applicant had not understood the Respondent's 4 October 2021 letter that is also not an exceptional circumstance.

• [16] Completing an incorrect application in the first instance is also not an exceptional circumstance.

• [17] In any event the Applicant has not explained why having been advised on 30 November 2021 that she had filed the incorrect form she did not file this application until five days later on 5 December 2021.

• [18] The Applicant has not provided an acceptable reason for the delay in making her application. Nor are the circumstances of her case that she has submitted exceptional.

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

• [19] The Applicant was made aware of her dismissal before it took effect.

• [20] The Applicant did take other action to dispute her dismissal by making the F9 (Unlawful Termination application).

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

• [21] I do not accept that there is any prejudice to the Respondent if a further period to apply was allowed.

• [22] In her application the Applicant explains why she believes the dismissal was unfair is because she was terminated one month before the PHO deadline, therefore losing a month's wage.

• [23] The remedy the Applicant seeks in her application is to be reimbursed for lost pay from 1 November 2021 to 30 November 2021.

• [24] The Respondent submits that it has always referenced the PHO as the rationale behind them implementing their Immunisation Policy. The Applicant was fully advised she was required to provide proof of her first vaccine dose by 1 November 2021. The Respondent submits the Applicant failed to provide evidence of her vaccination status by that date and so was dismissed. Prior to this the Applicant was issued a show cause letter and given an opportunity to respond before her employment was dismissed.

• [25] The Respondent also in their submissions points out that the Applicant was dismissed and paid five weeks' in lieu of notice. Her employer has paid her ordinary wages up until the week ending 12 December 2021.

• [26] Considering the facts of this matter the Applicant's case is weak and she is unlikely to be able to prove that her dismissal was unfair.

• [27] In addition, even if the Applicant is able to satisfy the Commission that her dismissal was unfair the Applicant, apparently remaining unvaccinated, as of 1 December 2021 would by virtue of the PHO not be able to be employed. Consequently, no compensation could be ordered for lost income in the circumstances where the Respondent has paid the Applicant a quantum in lieu of notice equivalent to a period that extended beyond 1 December 2021.

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

• [28] 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.

• [29] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering all of the relevant factors here I am not satisfied that this case involves exceptional circumstances.

• [30] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

• [31] An order [PR737356] to that effect will now be issued.

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