Fair Work Act 2009

s.394 - Unfair dismissal

Extension of time (s 394(3)) - no exceptional circumstances - application dismissed

• [1] This decision concerns an application by Ms Jessica Davis under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. Ms Davis's employment with Ambulance Victoria (AV) was terminated on 6 December 2021. Section 394(2) states that an unfair dismissal application must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). Taking into account Victorian public holidays, the 21-day period ended at midnight on 29 December 2021. The application was lodged on 23 March 2022, nearly three months out of time. In order for Ms Davis's application to proceed, she requires the Commission to grant an extension of time.

• [2] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are 'exceptional circumstances'. I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section.

• [3] The Act does not indicate what kind of 'reason for the delay' (s 394(3)(a)) might tell in favour of granting an extension of time, however decisions of the Commission have referred to an 'acceptable' or 'reasonable explanation'. Ms Davis advances several reasons for the delay. First, Ms Davis submitted that she had been unable to pay for a lawyer to advise her about her dismissal and that she had initially filed a general protections application on 20 December 2021 but discontinued it on 23 March 2022 after being informed by the conciliator that an unfair dismissal application would be more appropriate. Ms Davis contended that she had in effect made an error and should originally have filed an unfair dismissal application instead of a general protections claim. Secondly, Ms Davis said that she had been suffering pain from a workplace injury and had been unable to sit for longer than 10 minutes at a time. She said that the prescription medication she had been taking for her injury had affected her concentration at the time she made her applications, and that she had no or limited capacity to file her applications. Thirdly, Ms Davis submitted that she is the primary carer for her two young children and that they consume a large portion of her time.

• [4] I do not consider that Ms Davis has provided an acceptable or reasonable explanation for the delay. First, the fact that Ms Davis initially filed a different application is not a good reason for delay. This simply reflects unawareness of the law or a change of mind on her part about which application to pursue. The fact that Ms Davis did not have legal representation is of no significance. There is ample information on the Commission's website concerning unfair dismissal applications. People routinely represent themselves. Lawyers require the Commission's permission in order to represent a client. Secondly, while I accept that Ms Davis had sustained an injury which caused her pain and for which she was prescribed medication, I do not accept that this prevented or seriously impeded the lodgement of her application. Indeed, she was able to lodge a timely general protections application despite these factors. Thirdly, I do not consider Ms Davis's parental responsibilities to be a reasonable or acceptable reason for the delay. An F2 unfair dismissal application is a simple form that can be filed in a variety of simple ways. Finally, I do not regard the combination of these matters to be exceptional, or to amount to an acceptable reason for the delay. The reasons for the delay weigh against an extension of time.

• [5] I consider the following matters to be neutral considerations. First, this is not a case where the person first became aware of the dismissal after it had taken effect (s 394(3)(b)). Secondly, there is no prejudice to the employer (s 394(3)(d)). Thirdly, I am not aware of any matters that are relevant to the question of fairness as between Ms Davis and other persons (s 394(3)(f)).

• [6] I accept that Ms Davis took action to dispute her dismissal by filing her F8 general protections application on 20 December 2021 (s 394(3)(c)). This weighs in favour of an extension of time.

• [7] As to the merits of the unfair dismissal application (s 394(3)(e)), Ms Davis contends that her dismissal for failing to provide AV with evidence of her vaccination status or of a booking to receive a first dose of a COVID-19 vaccine was unfair, because she had in fact met AV's requirement. Ms Davis said that on 23 November 2021 she provided AV with evidence of a booking to receive the vaccine on 30 November 2021, and then brought this forward, at AV's request, to 26 November 2021. Ms Davis said that she then fell ill, and on 25 November 2021 she gave AV a medical certificate. She told AV that she had flu-like symptoms, was unfit for work, and would need to delay her vaccination. Ms Davis said that it was her understanding that a person could not receive the COVID-19 vaccine within 7 to 10 days after experiencing flu-like symptoms. She submitted that AV then proceeded to dismiss her on 6 December 2021, when she remained unwell, and after she had submitted a new medical certificate that morning. Ms Davis said that it was unfair to dismiss her for not receiving her first dose of vaccine during a period when she was unable to receive it.

• [8] AV submitted that Ms Davis's dismissal was not unfair because AV was subject to the Victorian government's COVID-19 Mandatory Vaccination Directions, pursuant to which it was prohibited from allowing Ms Davis to attend for work unless she had provided AV with evidence that she was vaccinated or had an appointment to receive a vaccination. Ms Davis had been required to provide such evidence by 15 or 29 October 2021, but did not do so, meaning she could not do her job. AV did not commence a show cause process until 15 November 2021. Only on 23 November 2021 did Ms Davis advise AV that she had made an appointment to receive a vaccination. She then cancelled it due to illness. AV submitted that it then directed Ms Davis to attend an appointment with a vaccinologist on 1 December 2021 who would review her health status and administer a vaccination if it was safe to do so, but Ms Davis did not attend the appointment. AV submitted that it dismissed Ms Davis because she was unable to fulfil the inherent requirements of her job, and that it had allowed her ample time to receive the vaccine.

• [9] An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form a concluded view about the merits. However, I do not consider Ms Davis's application to be a strong one. At the time of dismissal she was unable to perform the inherent requirements of her job. Nevertheless, in light of her submission that she was prepared to become vaccinated and that only illness prevented her from receiving the vaccination, I am prepared to accept that Ms Davis has at least an arguable case that her dismissal was unfair. On the other hand, AV has a prima facie defence. Ms Davis was dismissed because she could not do her job. I consider the merits of the application to be a neutral factor.

• [10] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. There is no acceptable or reasonable explanation for the delay. The circumstances that Ms Davis refers to, whilst in various respects difficult, are not exceptional. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. Ms Davis's unfair dismissal application is therefore dismissed.

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