Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.

• [1] This decision concerns an application made by Ms Laura McIntosh (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Barwon Health (the Respondent) from 27 September 2011 as a Clinical Nurse Specialist and asserts in her Form F2 application that her employment with the Respondent was terminated with effect from 14 December 2021.

• [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2). As the dismissal took effect on 14 December 2021 the period of 21 days ended at midnight on 4 January 2022.

• [3] The Applicant lodged her unfair dismissal application by email on 2 January 2022 in an unreadable format. After correspondence with the Commission and several attempts made to refile, the Application was lodged on 6 January 2022 in a readable format, 2 days out-side the 21-day timeframe. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3) of the Act. The Respondent opposes this request.

• [4] The matter was listed for Conference/Hearing on 3 February 2022 in advance of which both parties filed material in accordance with directions issued. After hearing from the parties, I determined to conduct the matter by way of a conference pursuant to s.398 of the Act. The Applicant appeared on her own behalf and gave evidence while Ms Dana Wintermantel of the Victorian Government Solicitors Office appeared for the Respondent.

• [5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

• [6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

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

• [8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [9] On 16 March 2020, the Minister for Health in the State of Victoria issued a declaration of a state of emergency pursuant to s.198(1) of the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) arising from the COVID-19 pandemic. The declaration has been extended by the Minister on numerous occasions pursuant to s.198(7)(c) of the PHW Act, including on 18 November 2021, and remained in force until 11.59 pm on 15 December 2021. The Public Health and Wellbeing Amendment (Pandemic Management) Act 2021 came into operation on 8 December 2021 and now regulates matters pertaining to the COVID-19 pandemic.

• [10] At 11.59 pm on 29 September 2021, directions issued by the Acting CHO pursuant to the PHW Act, which were titled the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4), commenced operation (CHO Directions). The CHO Directions contained several directions that were binding on the Respondent.

• [11] Because of the CHO Directions the Respondent was required, as soon as was reasonably practicable after 1 October 2021, to collect, record and hold vaccination information about healthcare workers scheduled to work on the premises of the Respondent on or after 15 October 2021. The Respondent was also required to collect, record, and hold information as to when partially vaccinated and unvaccinated workers would, respectively, receive their first and second doses of the vaccine (as defined in the CHO Directions).

• [12] The Respondent was also required to take all reasonable steps to ensure that, on or after 15 October 2021, a healthcare worker who was unvaccinated did not enter, or remain on, the Respondent's premises for the purpose of working there. If the Respondent did not hold vaccination information about a worker, it was required to treat the worker as if the worker were unvaccinated. The CHO Directions then provided an exception to this where an unvaccinated healthcare worker had a booking to receive a first dose of a COVID-19 vaccine by 29 October 2021.

• [13] The CHO Directions allowed for exemptions for an "excepted person", that being a person who had medical certification from a medical practitioner that he or she was unable to receive the vaccine due to a medical contraindication or an acute medical illness (as defined in the CHO Directions).

• [14] The CHO Directions were replaced by successive iterations, the last of which was the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 13). The CHO Directions have now been replaced by pandemic orders which are substantially the same as the CHO Directions.

• [15] On 21 and 30 September 2021, the Applicant was notified by the Respondent of the effect of the CHO Directions. On 7 October 2021, the Applicant was notified of the need to provide vaccination evidence. On 8 October 2021, the Applicant was emailed frequently asked questions and answers relating to mandatory vaccination for health care workers.

• [16] On 13 October 2021, the Respondent issued the Applicant with a written direction as follows:

"Before 15 October 2021, you must provide evidence that you have:

• Received at least a first dose of a COVID-19 vaccination; or

• An appointment to receive at a first dose no later than 29 October 2021.

In the event you are unvaccinated by 15 October 2021 but have provided proof of a COVID-19 vaccination booking by 29 October 2021, you may continue to work but will be required to wear appropriate PPE that includes at a minimum a surgical mask and face shield.

From 30 October 2021 you must be able to provide evidence that you have:

• Received two doses of a COVID-19 vaccination; or

• One COVID-19 vaccination and a booking for a second no later than 15 December 2021.

By 15 December 2021 you are required to provide evidence of receiving both doses of a

COVID-19 vaccination."

• [17] The Applicant who was on care's leave from 6 October 2021 until 12 November 2021 sent an email to the Respondent on 13 October 2021 advising that she was on carer's leave and was unsure of when she would be returning to work.

• [18] On 20 October 2021, a further email was sent by the Respondent to the Applicant regarding her failure to provide the Respondent with details of either her vaccination status or booking details for vaccination. The Applicant was advised in the email that if she failed to provide the requested evidence by 24 October 2021 she may be stood down from duty and that a serious misconduct process would be initiated.

• [19] On 29 October 2021, the Applicant wrote to the Respondent requesting a hard copy of the Cgov questionnaire document for which a link was provided in an earlier email that allowed completion of her vaccination details. Her email stated that she needed a hard copy to review with her solicitor as the process directly impacted her employment. She also requested that any further correspondence be delayed until her return from personal leave.

• [20] On 1 November 2021, the Respondent sent a letter to the Applicant in relation to the CHO Directions and advised the Applicant that she was required to comply with the Respondent's written direction set out in the letter dated 13 October 2021, prior to returning from leave on 12 November 2021.

• [21] At 8.40am on 12 November 2021 the Applicant wrote to the Respondent regarding the 1 November 2021 correspondence received. In her correspondence the Applicant sought clarification in respect of several matters including;

• what were 'reasonable steps' under the directions;
• the difference between a 'law' and a 'direction';
• what alternative options (to vaccination) were available to allow her to continue working for the Respondent; and
• requesting the provision of a thorough Covid-19 'risk assessment'.

• [22] At 4.34pm on 12 November 2021 an email was sent to the Applicant by Bree Bushell of the Respondent confirming the Applicant had not provided evidence of her vaccination or vaccination booking status. The Applicant was advised that she would consequently be stood down at the cessation of her carer's leave that day. Responses were also provided to the Applicant in relation to questions posed in the Applicant's email of earlier that day.

• [23] On 15 November 2021, the Applicant sent a further email to the Respondent requesting that responses be provided to questions she says were not addressed in Bree Bushell's response to her on 12 November 2021. The Applicant expressed frustration at the stream of correspondence received by her from the Respondent during her carer's leave and stated that the Respondent's threat of economic duress lacked compassion and respect.

• [24] On 17 November 2021, the Applicant was sent an email from the Respondent that included a hard copy of the Cgov questionnaire that she had requested. Formal correspondence was also attached to the email confirming that she had failed to comply with a lawful and reasonable direction as set out in the letter dated 13 October 2021. The Applicant was notified that she would be stood down from duty pending the outcome of the investigation in relation to her failure to follow a lawful and reasonable direction and that a meeting had been scheduled for 24 November 2021 to provide the Applicant with an opportunity to respond to the allegation. The Applicant was provided with the opportunity to bring a representative/support person to this meeting.

• [25] On 23 November 2021, the Applicant responded to the 17 November 2021 correspondence from the Respondent. She stated that she could not meaningfully respond to the issues raised by the Respondent without obtaining responses on a series of questions she had previously raised. She requested details of the consequences for her employment if she declined to be vaccinated and a copy of her contract of employment which she was said to be in breach of.

• [26] On 25 November 2021, the Respondent sent a letter to the Applicant notifying her that the response to allegations meeting had been rescheduled to 30 November 2021. The Applicant did not attend the 30 November 2021 meeting.

• [27] On 30 November 2021, the Respondent issued a letter to the Applicant notifying her that the outcome of the investigation was that the allegations had been found to be substantiated. The letter also provided notice of a meeting on 3 December 2021 to give the Applicant the opportunity to respond to the proposed termination of her employment. The Applicant was provided with the opportunity to bring a support person to this meeting. The Applicant did not attend the meeting held by teleconference on 3 December 2021.

• [28] On 5 December 2021, the Applicant sent an email to the Respondent noting that she had not received a response to a series of questions she had asked in earlier emails. She sought answers to those questions before the Respondent moved to the next stage of the disciplinary process. The Respondent replied on 6 December 2021 offering her an opportunity to provide a written response to the 30 November 2021 letter by 6 pm 7 December 2021 and confirming that all relevant information had been provided to her.

• [29] On 7 December 2021, the Applicant emailed the Respondent with questions relating to her employment and vaccination. She again requested a copy of her contract of employment. On 9 December 2021, the Respondent provided an email response to the Applicant's questions indicating, among other things, that the proposed outcome of the Applicant declining COVID-19 inoculation would be termination of employment and that the Respondent had been unable to locate a copy of her original contract of employment as previously advised to her.

• [30] In a letter dated 9 December 2021, the Respondent confirmed to the Applicant that the investigation had found the alleged serious misconduct to be substantiated and set down a further meeting for 13 December 2021 for the Applicant to respond to the outcomes of the investigation. The Applicant was provided with the opportunity to bring a representative/support person to this meeting.

• [31] At 10.41am on 13 December 2021 the Applicant emailed the Respondent expressing alarm that the Respondent had decided to proceed to terminate her employment, relying on a breach of her employment contract, in circumstances where they were unable to produce a copy of that employment contract. She advised that she would not be attending the meeting scheduled for that day until provided with a copy of her original signed employment contract and an appropriate amount of time to review it.

• [32] On 14 December 2021, a letter was provided to the Applicant confirming the outcome of the investigation and termination of her employment.

• [33] The Applicant says that she filed her application and supporting material with the Commission by email on Sunday 2 January 2022 at 11.13 pm. Beyond referring to other staff of the Respondent advising her to make an application for unfair dismissal, the Applicant offered no explanation as to why she did not attend to the filing of her application before the 2 January 2022.

• [34] The Applicant's email of 2 January 2020 stated as follows:

Please find attached an application form for Unfair Dismissal case against Barwon Health. If there are any issues with my application, please do not hesitate in contacting me. I was unsure whether to include all of the information at this stage, apologies if this was not required.

• [35] Commission records indicate that at 9:25 am on Tuesday 4 January 2022, the Commission sent an email in response to the Applicant advising as follows:

The Fair Work Commission received the attached email from you on Sunday, 2 January 2021.

We cannot access your email or attachments because of:

• the format of the files
• security restrictions on the files, or
• our security restrictions for file sharing websites (such as dropbox or google docs).

We cannot action your email because we cannot access the documents that you tried to send us.

If you have tried to lodge an application or send us documents about an existing case, we have not received the files.

Please send us the documents again without any security restrictions in one of these formats:

There are strict time limits for some application types. Some applications are dismissed if they aren't lodged within the time limits.

You can contact us for help by return email or on 1300 799 675.

• [36] Commission records further indicate the Applicant responded to the Commission's email of 4 January 2021 on 5 January 2022 at 12:28 pm seeking confirmation as to whether the Form F80 has been received, and further clarification as to whether it would be easier to send the relevant documents by post as the online lodgement system appeared to be unavailable. At 1:45 pm on same day, the Commission responded again, advising that no documents had been received as they were not in the required format. The Commission again requested that the documents be resent in an approved format as listed.

• [37] Evidence proffered by the Applicant as well as Commission records indicate the following subsequently occurred:

• The Commission received an email from the Applicant at 1:49 pm on Wednesday 5 January 2022 advising she had changed the files to the recommended format. Forms F2 and F80 were attached along with several supporting documents. A second email was received at 1:51 pm attaching further supporting material.

• The Applicant was again advised by the Commission at 1:56 pm on Wednesday 5 January 2022 that the documents were not in a format that could be opened. She was asked to resend the attachments in an approved format as listed.

• The Applicant made a further attempt to re-lodge her application along with a Form F80 at 1:56 pm on Wednesday 5 January 2022. The Applicant was advised again by the Commission at 1:59 pm on the same day that the documents were in a .pages format and therefore could not be opened. She was again encouraged to resend the attachments in an approved format.

• On Wednesday 5 January 2022 at 2:48 pm the Applicant sent a follow-up email to the Commission seeking confirmation that her third email, attaching Forms F2 and F80, had been received. The Applicant was advised by the Commission at 2:50 pm on same day that the files had a .pages extension and could not be opened. She was asked again to re-attach the documents in an approved format.

• At 8:45 pm on Wednesday 5 January 2022, the Applicant sent a further email to the Commission stating that she believed the documents had been converted to word format, advising she would try again and seeking confirmation as to whether the other documents filed had come through ok.

• The Commission responded to this email at 7:57 am on Thursday 6 January 2022 advising that the .jpg files lodged could be accessed however, the application submitted remained in a .pages format that could not be opened. A suggestion was made to convert the document to word or pdf format as these formats could be accessed, provided they were not corrupted.

• [38] The Applicant's Form F2 application was successfully received by the Commission in a readable pdf format at 12:13 pm on 6 January 2022, 2 days after the 21-day timeframe prescribed by the Act.

• [39] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 4 January 2022. The delay is the period commencing immediately after that time until 6 January 2022, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [40] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although 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, and 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[5].

• [41] The Applicant submits that her application was not made out of time as her initial email was sent to the Commission on 2 January 2022, that being 19 days after her dismissal. She says it was lodged by email, as the Commission website advised that the Online Lodgement Service was unavailable. She further submits that it was only when the Commission replied to her on 4 January 2021 that she was made aware of the fact that the files were not readable, at which point she says she worked promptly to rectify the issue as she was aware of the strict 21-day timeframe required to file the application. She explained the delay between her receipt of the Commission's email on 4 January 2021 and her response on 5 January 2021 as due to her not reviewing her emails on 4 January 2021.

• [42] I note that Monday 3 January 2022 was a prescribed Public Holiday in lieu of New Year's Day which explains why the Commission response to the Applicant was delayed until 9:25 am on 4 January 2022. In responding, the Commission advised the Applicant that her application had not been received as the documents could not be opened. She was requested to file the application and other materials in a listed and approved format as set out in Commission correspondence referred to above at [35].

• [43] I am satisfied that the Applicant attempted to submit her application within the 21-day timeframe, by email (as she was unable to utilise the Commissions online lodgement system) on 2 January 2022. However, she filed her material in .pages format which was unable to be opened by the Commission and as such the application was deemed not have been made on 2 January 2021. I also accept that considering the Public Holiday on 3 January 2022, there was a delay of 1 day in the Commission notifying the Applicant of the fact that her application form had not been lodged correctly.

• [44] It is also evident from the Commission records and evidence submitted by the Applicant that she made several attempts on 5 January 2022 to resubmit her application. These attempts, however, do not account for the delay in the Applicant actioning the Commission's initial email sent at 9:25am on 4 January 2022 advising her of the document format issue and requesting the documents be resubmitted in the correct format. The Applicant did not respond until 12:28 pm on 5 January 2022, the 22nd day after her dismissal, at which point she commenced liaising with Commission staff to correct the document format issue. She says the delay in responding was due to not reading her emails until 5 January 2021.

• [45] I accept that the Applicant may have experienced some difficulty in submitting the documents and/or converting them into an acceptable format. That in itself is not a unique or unusual circumstance. Significantly, it took the Applicant over a day to respond to the Commission's correspondence of 4 January 2022 and a further day to submit her application in a format that could be accepted. The 2-day delay in filing the application can be attributed directly to the time it took the Applicant to respond to the Commission's correspondence and subsequently provide the application in a format that could be accepted, a format outlined in all the Commissions correspondence sent to the Applicant. Had the Applicant responded promptly to the Commission on 4 January 2022, it is more likely that her application could have been lodged within the 21-day timeframe required. I also note the apparent inaction of the Applicant in attempting to file an application in the period between her dismissal and 2 January 2022.

• [46] Considering all the above circumstances and in particular the Applicant's failure to promptly respond to the document format issue raised by Commission staff with her on 4 January 2021, I am not persuaded that the Applicant has provided an acceptable reason for the delay in filing her unfair dismissal application. This weighs against a finding of exceptional circumstances.

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

• [47] It was not in dispute, and I find, that the Applicant was notified of her dismissal on the same day that it took effect on 14 December 2021 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. This weighs against a finding of exceptional circumstances.

• [48] Other than seeking a copy of her employment contract from the Respondent prior to and immediately following her dismissal taking effect on 14 December 2021, it is not apparent that the Applicant took any further action to contest her dismissal after it took effect, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [49] The application was appropriately filed two days outside of the 21-day period. In these circumstances I find there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [50] The Act requires me to take into account the merits of the application in considering whether to extend time.

• [51] The Applicant submits that the conduct of the Respondent was unreasonable in several respects which renders the dismissal unfair. She submits that it was unreasonable of the Respondent to have communicated with her while she was on carer's leave between 6 October 2021 and 12 November 2021 regarding the CHO Directions. She further submits that she was denied a reasonable opportunity to respond to the concerns of the Respondent regarding her vaccination status on cessation of her carer's leave on 12 November 2021. This she submits arose from the Respondent's failure to promptly answer several questions she had raised or provide her with a copy of her original signed contract of employment, the breach of which she says was relied on by the Respondent in dismissing her.

• [52] I accept, from the chronology of events set out above, that the Applicant was notified repeatedly of the requirements to provide evidence of her Covid-19 vaccination status or vaccination booking status following commencement of the CHO Directions on 29 September 2021, albeit between the 6 October 2021 and 12 November 2021 she was on carer's leave. While notification of these requirements during her period of carer's leave may have been considered inconvenient or unpleasant by the Applicant, the simple fact is that she was made aware of the Respondent's position on the CHO directions and chose not to engage on those requirements until her return from carer's leave.

• [53] On cessation of the Applicant's carer's leave on 12 November 2021, the Applicant was immediately stood down due to her non-compliance with the CHO Directions. What then followed was a series of further communications between the Respondent and the Applicant regarding the CHO Directions and the Applicant's request for particular information. The Applicant's information requests largely went to matters on which the Respondent had no discretion under the CHO Directions. For example, the Applicant sought to explore whether there were any alternatives (to vaccination) such as rapid antigen testing (RAT), how the CHO Directions interacted with the Respondent's obligations under the Occupational Health and Safety Act 2004 (Vic) and what the difference was between a 'law' and a 'direction'.

• [54] In light of the Applicant's continued non-compliance with the CHO Directions the Respondent moved to a disciplinary process and put the Applicant on notice that her employment was at risk in correspondence dated 30 November 2021. The Applicant continued to maintain at that point and following, that absent the provision of certain information including a copy of her original contract of employment, she was unable to properly respond to the proposed termination of her employment.

• [55] It is apparent from the material that there was extensive communication between the Respondent and the Applicant, even taking into account that it was seen by the Applicant as unreasonable to communicate with her during a period of carer's leave. Even were I to accept the Applicant's submission on that point there was still a four-week period following her return from carer's leave on 13 November 2021 during which she persisted in her resistance to complying with the CHO Directions, relying on their being incomplete information before her.

• [56] The Applicant's submissions largely go to the process followed by the Respondent in implementing the CHO Directions as it applied to her employment. The submission fails however to grapple with one fundamental point, that being the Respondent and the Applicant were required to comply with the CHO Directions, deviation from which there was no discretion available. The requirements of the CHO Directions were consistently advised to the Respondent's employees, including the Applicant, following the commencement of their operation on 29 September 2021.

• [57] While the Applicant may have been in some doubt on cessation of her carer's leave on 12 November 2021 as to the implications for her employment of the CHO Directions, any such doubt was removed on 30 November 2021 when she was notified of the proposed termination of her employment. That the Respondent was unable to locate a copy of her original signed contract of employment did not alter the fundamental position that the Applicant was, by her decision to not comply with the CHO Directions, unable to perform the inherent requirements of her role as a Clinical Nurse Specialist with the Respondent, the consequence of which was her dismissal on 14 December 2021.

• [58] Having considered all the circumstances, I find the merits of the Applicant's case to be weak. This weighs against a finding of exceptional circumstances

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

• [59] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [60] The Respondent submits that other former employees of the Respondent who were dismissed for failing to comply with the Respondent lawful request and directions have filed unfair dismissal applications within 21 days of their dismissal taking effect. It submits that it would therefore be unfair as between the Applicant and these other persons to grant an extension of time in this matter.

• [61] The Applicant submits in reply that her circumstances may be contrasted with those of other dismissed employees as she was on a period of carer's leave during which the Respondent was dealing with the mandatory vaccination requirements. This, she says, denied her the same opportunity as her colleagues to obtain information and consider her position.

• [62] I accept there may be other employees of the Respondent that are in a similar position to the Applicant in terms of having lost their employment due to the impact of the CHO Directions. There is however nothing in the material before me that persuades me that the circumstances of the Applicant's late filing of her application are in any way impacted by those other matters. I consequently regard this factor as a neutral consideration.

• [63] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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