Fair Work Act 2009

s.394 - Unfair dismissal

Termination of employment - jurisdiction - extension of time.

• [1] Ms Elissa Louise Massey (Ms Massey 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 Centrecare (the Respondent).

• [2] Ms Massey's application says she was notified of her dismissal on 10 December 2021 and her dismissal took effect 2 December 2021. Her application was made on 3 January 2022.

• [3] The Respondent says her end of contract letter was sent to her email address on 9 December 2021 and her dismissal took effect on 2 December 2021.

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

• [5] 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."

• [6] Consequently, on 13 January 2021 the 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 Commission in determining whether there were exceptional circumstances in this case.

• [7] The Applicant provided a written response.

• [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 she was only informed of the dismissal on 10 December 2021. She says that due to public holidays and packing her house and selling things to make money to afford her rent and dealing with significant stress that the dismissal placed upon herself her mental health was all over the place.

• [11] Regrettably disruption to people's accommodation and financial stress is not an uncommon consequence of unemployment and these are not exceptional circumstance. The occurrence of public holidays is also not an exceptional circumstance.

• [12] The request for further information from the Commission about the Applicant's exceptional circumstances explained that if she was relying on a medical condition as the reason for delay, she should supply a medical certificate or report which specifically explains why her medical condition prevented her from making her application within time.

• [13] The Applicant has not filed a medical certificate or report that supports the conclusion that her mental health condition prevented her from making this application within time.

• [14] The issues in the circumstances which the Applicant seeks to rely on together are not exceptional circumstances. The Applicant has not provided an acceptable reason for the delay in making this application.

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

• [15] The Applicant became aware of her dismissal on 10 December 2021 which was after it had taken effect. I note that the application however was made more than 21 days after 10 December 2021.

• [16] The Applicant did not take 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 employer.

• [18] The Applicant says in her application she was told on 2 November 2021 she could not work past 30 November 2021. Her contract however was for her to work until 31 December 2021.

• [19] She says no reasons were given and she feels this was unfair.

• [20] She says she was sent emails with multiple different end dates; being 31 December 2021, 30 November 2021 and 19 December 2021.

• [21] The Respondent's response says the Applicant had a Casual Maximum Term Contract which was due to end on 31 December 2021.

• [22] In June 2021, all employees were notified that the program on which they were engaged would end on 31 December 2021. All children involved in the program were transitioned out of Centrecare's care by 10 December 2021.

• [23] The Respondent also says that its Manager, Mr Culver, rang the Applicant on the week of 22 November 2021 following up with all carers about their vaccination status. Apparently, the Applicant was at that time unwilling to be vaccinated while she sought medical advice however the Respondent therefore needed to remove her from the roster post 1 December 2021 due to the Chief Health Officer's public health mandate.

• [24] The Respondent attached a letter addressed to the Applicant dated 24 November 2021 which explains the Public Health Order that provides for mandatory vaccinations and that the first vaccination is required by 1 December 2021. The letter explains what actions the Applicant should take if she is unvaccinated or partially vaccinated or seeking an exemption.

• [25] The Respondent says the Applicant did not obtain an exemption from vaccination.

• [26] The Public Health Order required the Applicant to have her first 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 be employed 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

• [27] 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.

• [28] The onus is on the Applicant to persuade the 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.

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

• [30] This application has been made out of time and so must now be dismissed. An Order [PR738122] to that effect will now be issued.

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