Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed.

• [1] Mr Antonio Ferrato (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with an unfair dismissal arising out his employment with Virtus Health Specialist Diagnostics Pty Limited (the Respondent).

• [2] The Respondent has objected to the Application on the ground that the Application was filed out of time.

• [3] Before considering the merits of the application, the Commission must be satisfied that the Application was not made out of time.

When must an application for an order granting a remedy be made?

• [4] Section 394(2) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [5] After taking into account the views of the Applicant and the Respondent regarding the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing in the matter at which each party supplemented their written submissions (s.399 of the Act).

• [6] The Respondent submitted that the dismissal took effect on 9 September 2021. While the Applicant agreed he was informed of his dismissal on Thursday 9 September 2021, he submitted that because he was permanently rostered to work Mondays and Tuesdays, the termination did not take effect until Monday 13 September 2021.

• [7] Having regard to the matters I have referred to, including the clear correspondence between the parties referred to below, I find that the dismissal took effect on 9 September 2021.

Was the Application made within 21 days after the dismissal took effect?

• [8] It is not in dispute, and I so find, that the Application was made on 1 October 2021.

• [9] As the Full Bench of the Fair Work Commission has stated, in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [10] As I found above, the dismissal took effect on 9 September 2021. The final day of the 21 day period was therefore 30 September 2021 and ended at midnight on that day. As I found above, the Application was made on 1 October 2021, and so it was one day late.

• [11] The Application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

• [12] Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

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

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

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

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

• [13] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [14] I set out my consideration of each matter below.

• [15] For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 30 September 2021. The delay is the period commencing immediately after that time until the date the Application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [16] 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]

• [17] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]

• [18] The Applicant submitted that the delay was due to "the uncertainty with the Government Regulations, laws and powers relating to Covid 19 led me to believe I would not have a claim, this changed with the outcome of a claim that had been before the Commission which I had only now become aware."

• [19] In the hearing of the matter the Applicant identified the 27 September 2021 decision of the Full Bench of the Commission in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd,[6] (Kimber), and particularly the minority decision of Deputy President Dean, as the "outcome" before the Commission to which he referred.

• [20] The Respondent noted in its written materials that it was unaware of any authority which provided that becoming aware of a successful decision at the Commission justified reasonable grounds for an Applicant to have delayed lodging a claim.

• [21] The Respondent outlined in detail the steps that it took to implement the NSW Department of Health Public Health Orders (the PH Orders) that were initially issued on 20 August 2021, and which were subsequently amended several times.

• [22] The Respondent noted that in the 28 August 2021 revision of the PH Orders, anyone living within a group of twelve Local Government Areas of concern (LGAs) who was required to travel outside of their LGA for work was required to provide evidence of a first dose of a COVID-19 vaccination by 6 September 2021. The Applicant's home address was in one of the LGAs of concern as defined by the PH Orders.

• [23] The Respondent communicated this information through a company memo to all staff on 28 August 2021. Further, a letter was then sent to the Applicant on 3 September 2021 reconfirming the PH Orders and explaining that if the Applicant did not comply with the PH Orders, he would not be able to continue working and would not be paid from 6 September.

• [24] On 5 September 2021, the NSW Department of Health extended the PH Orders, indicating that authorised workers who are not yet vaccinated would have until the end of Wednesday 8 September 2021 to book their vaccination, and from 9 September 2021, authorised workers would be required to carry evidence of their booking if they wish to leave their LGA for work.

• [25] The Respondent noted that on 5 September 2021, the Applicant e-mailed the Respondent, and advised:

There are a number of reasons as to why I will not be vaccinated for Covid-19 however, as far as I am aware none of those reasons fall within the medical exemption requirements.

• [26] On 6 September 2021, the Respondent's Group General Manager People & Culture telephoned the Applicant and reiterated to the Applicant that the Applicant must have evidence of having received a COVID-19 vaccination by close of business on 8 September 2021 in order to comply with the new extended date provided by the revised PH Orders. The revised Orders also provided an extension for receiving a first dose of a Covid-19 vaccination to 19 September 2021, provided the authorised worker booked an appointment for the vaccine by no later than close of business Wednesday, 8 September 2021. During that conversation the Applicant reconfirmed that he would not be receiving a vaccination and that he understood that this would result in the termination of his employment.

• [27] Following the above discussion, the Respondent sent a letter to the Applicant dated 6 September 2021, that included the following:

"In your e-mail from 5 September, you indicated that you have decided not to receive a vaccinated against COVID-19. We respect your decision and by this letter simply want to ensure that you understand the impacts this will have to your employment.

In relation to this, you were contacted today by Lee Bakerman, Group General Manager, People & Culture who explained that without this vaccination you no longer perform the inherent requirements of your role and cannot comply with the NSW Public Health Orders.

During this discussion you confirmed that you have chosen not to receive a COVID-19 vaccination. You understand that without this vaccination you can no longer perform the inherent requirements of your role and this would result in the termination of your employment.

Unless you reconsider your decision and show evidence of complying with the above mentioned order by Close of Business, 8 September, given these circumstances, the Company can no longer continue your employment and your employment will be terminated effective 8 September, 2021.

In this case, payroll will forward to your home address all payroll documentation associated with your termination. If at any time you have any enquiries about your payments or associated matters, please contact payroll@virtushealth.com.au"

• [28] On 9 September 2021, as the Applicant did not provide any further communication to the Respondent and did not provide evidence of complying with the PH Orders, the Respondent

sent an e-mail to the Applicant confirming the termination of his employment.

• [29] Having regard to the above, I am not satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs against the Applicant in this matter.

• [30] While there was some fluidity in the expression and application of the PH Orders, any such variations had no effect on the position of the Applicant. Amendments to the dates by which first COVID-19 vaccinations had to be administered were of no moment to the Applicant as he simply refused COVID-19 vaccination. There was never a doubt at all relevant times that employees such as the Applicant would be required to be vaccinated. The only question was when.

• [31] As to the publication of Kimber as providing a reason for delay, any reasoned consideration of the decision of the Full Bench of the Fair Work Commission would disclose that the majority, in considering mandated flu vaccinations, did not in any way express a position that in any way supported the Applicant. While the minority may have made certain comments that went also to COVID 19 issues, that decision was clearly the minority position. Any reasoned analysis would have seen that Kimber did not support the Applicant's position.

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

• [32] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the Application.

What action was taken by the Applicant to dispute the dismissal?

• [33] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the Application on 1 October 2021.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [34] The Respondent did not suggest any prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted, however the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.

• [35] Having examined the materials, it is evident to me that the merits of the Application turn not on contested facts, but on contested submissions. It is not in issue that the Applicant is a casual employee, nor that he continues to hold the position that he will not be vaccinated for COVID 19. As such the Applicant was questioned about the utility of the Application were an extension of time granted.

• [36] The Applicant confirmed reinstatement was not sought but compensation was, submitted that instead of termination the Respondent should have looked for alternatives such as leave without pay or alternative vaccinations (though such alternatives were only first suggested in the hearing), and submitted the Respondent went beyond the PH Orders.

• [37] It is not possible to make any firm or detailed assessment of the merits of the Application. The Applicant has an apparent case, to which the Respondent has an apparent defence.

• [38] In the circumstances, I find that it is not possible to make an assessment of the merits of the Application.

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

• [39] In all the circumstances, I do not consider that an issue of fairness as between the Applicant and other persons in a similar position arises.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [40] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [41] 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.[7] 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.[8]

• [42] It is clear that the factor that has been accorded significant weight in this matter is the absence of an acceptable reason for the delay, and that factor weighs in the Respondent's favour. Having regard to all of the matters at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances.

• [43] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Application is therefore dismissed.

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[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, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] [2021] FWCFB 6015.

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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