Fair Work Act 2009

s.394 - Unfair dismissal

• [1] Ms Mirella Battigelli (the Applicant) applied for an unfair dismissal remedy, having been purportedly dismissed from Respiratory West Pty Ltd (the Respondent) on 8 November 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 Applicant concedes her application was filed on 30 November 2021 and was therefore submitted one day after the statutory deadline. The Applicant attributes the delay in filing her application on her lack of understanding of the statutory timeframe - namely, that the reference to 21 days in s 394(2)(a) referred to calendar days and not working days, and in addition, the stress of losing her job in circumstances where she is a single mother supporting her family.

• [3] 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.

• [4] It is not contested that the application was made out of time. However, for the application to now proceed, it is necessary for the Applicant 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]

• [5] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted.

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

• [7] The Applicant commenced work with the Respondent as a Medical Secretary in April 2014.

• [8] The Applicant stated that from 9 September until 24 September 2021 she was:

[a]ware of the medical procedure that was being coerced and threats upon her employment being terminated if I did not take this forced medical procedure.

• [9] It appears that the 'medical procedure' the Applicant referred to was the requirement under the Primary Health Care Worker (Restrictions on Access) Directions (Directions) to have received at least her first does of a COVID-19 vaccine to access the Respondent's workplace within a certain period.

• [10] By letter dated 4 November 2021, the Respondent wrote to the Applicant informing her that as she had not advised the Respondent of her vaccination status as requested on 29 October 2021, she was now unable to access the workplace. In that same letter, the Respondent confirmed that the Applicant would be stood down, effective immediately.

• [11] The Respondent sent further email correspondence to the Applicant on 4 November 2021. In the email the Respondent noted that whilst the Applicant had sent a letter, the letter did not respond to the 'stand down' letter and therefore the Respondent's request for her to disclose her vaccination status by 5 November 2021, remained.

• [12] On 8 November 2021, the Respondent notified the Applicant that her employment had been terminated. The letter of termination observed that the Applicant had not informed the Respondent of her positive vaccination status and therefore her actions had prevented her from attending the workplace pursuant to the Directions.

• [13] 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).[2] 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.

• [14] In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[3] 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.[4]

• [15] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of 'exceptional circumstances'. Both were invited to make any further submissions in relation to the question of whether there were 'exceptional circumstances' by reference to those factors at paragraph [4] of this decision. Each of these factors are considered below and were outlined to the parties at the start of the hearing.

• [16] 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.[5] 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.[6]

• [17] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[7] 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.[8]

• [18] The Form F2 - Unfair Dismissal Application states the following at question 1.5:

Are you making this application within 21 calendar days of your dismissal taking effect? (italics for emphasis)

• [19] The Applicant had marked that in the affirmative that she was making the unfair dismissal application within the '21 calendar days'.

• [20] The reasons for the delay were the Applicant's ignorance that the time limit of 21 days referred to calendar days and not working days, and that she was stressed about losing her job and lodging the claim.

• [21] In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of 'exceptional circumstances', it was said that:

[I]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[9]

• [22] It is accepted that ignorance of the timeframe does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[10]

• [23] At the time of her dismissal, the Applicant contends that she found her circumstances to be 'very very stressful'. While sympathetic to the Applicant's circumstances, including her responsibilities as the primary carer for dependents, there is simply no evidence to corroborate that she was so incapacitated from stress that she was unable to make an unfair dismissal within the requisite period. It is common for employees to suffer shock and trauma because of dismissal from employment.[11]

• [24] Further, prior to the Applicant's dismissal it had been made unequivocally clear to her that the Respondent was obliged to comply with the Directions and therefore was unable to provide the Applicant with access to the workplace unless she was forthcoming with evidence regarding her COVID-19 vaccination. The letter of 4 November 2021 read:

Further, please confirm your intentions regarding your vaccination status and compliance with the Directions by close of business 5 November 2021. Failure to confirm you vaccination status by this date will result in termination of your employment.

• [25] I am satisfied that the Applicant has not provided a credible explanation for the delay, and this therefore weighs against a finding of exceptional circumstances.[12]

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

• [26] At all material times from the time the Applicant was notified of her dismissal on 8 November 2021, until the date the unfair dismissal application was made, the Applicant knew she had been dismissed. I therefore consider this to be a neutral factor.
• 3.3 Action taken by the person to dispute the dismissal

• [27] 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.

• [28] On 4 November 2021, the Applicant wrote to the Respondent regarding the 'terms and conditions' that it was imposing upon her. She noted she was 'not prepared to leave' her 'work position' and therefore proposed to work from home. In that same letter, the Applicant again reiterated that she was not choosing to leave her position or job.

• [29] The Respondent submitted that following the notification of dismissal on 8 November 2021, the Applicant did not take any steps to dispute the dismissal. The Respondent submitted that on 11 November 2021 and on 17 November 2021 the Applicant acknowledged receipt of the termination letter of 8 November 2021 and requested a Centrelink Employment Separation Certificate.

• [30] Notwithstanding the Respondent's submissions, I consider there to be sufficient evidence to find that the Applicant challenged her dismissal. This weighs towards a finding of exceptional circumstances.

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

• [32] 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]

• [33] 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.

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

• [34] 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]

• [35] 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 and the decision referred to by the Applicant, and as such I consider it a neutral consideration.

• [36] 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 opposed the termination of her employment and I considered this factor to weigh in favour of finding exceptional circumstances, when the totality of the evidence is considered, I am unpersuaded that the Applicant's circumstances are 'exceptional'.

• [37] While the conclusion reached goes against the Applicant in this case, it should not be read that the care of dependents is undervalued. It is simply the case that the circumstances presented are not exceptional and it follows that it is not fair and equitable to grant the extension.

• [38] The Applicant's application for an unfair dismissal remedy is therefore dismissed. An Order[19] will be issued with this decision.

Ms Katrina Taylor (AMA) on behalf of the Respondent.

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

[2] [2011] FWAFB 975; [2011] 203 IR 1 ('Nulty').

[3] [2018] FWCFB 901.

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

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

[10] Rose v BMD Constructions Pty Ltd [2011] FWA 673 [14].

[11] Howard v Medical and Aged Care Group T/A Humphries Road Medical Clinic [2018] FWC 3454 [19].

[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

[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.

[19] PR737354.

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