Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances exceptional - Respondent consents to exceptional circumstances finding - application granted

• [1] On 7 January 2022, the applicant, Ms Amber Drake (Ms Drake), filed an application in the Fair Work Commission under s 394 of the Fair Work Act 2009 (the Act) seeking a remedy for what she alleges was an unfair dismissal by her former employer, Melba Support Services Australia Pty Ltd (Melba). Ms Drake's dismissal took effect on 16 December 2021 and she has therefore filed her application 1 day outside the 21-day statutory timeframe prescribed by s 394(2) of the Act.

• [2] In her Form F2, Ms Drake declared that she was making her application within 21 calendar days of her dismissal taking effect and did not provide any reason as to why at this time. I issued Directions on 12 January 2022 setting out the procedure for the resolution of the out of time issue. On 17 January 2022, Melba submitted its F3 response, raising that the application was filed out of time and arguing that Ms Drake had "not provided a reason for the delay and the Respondent is not aware of any exceptional circumstances that exist that would support the granting of an extension."[1] In accordance with these Directions, on 17 and 18 January 2022, Ms Drake filed her materials, which included the death certificate of Mr Paul Rodney Drake, Ms Drake's late husband, and related submissions. In light of this, Chambers raised with the solicitors acting for Melba, Moores whether it "consents to a finding of exceptional circumstances" who later advised that their client did consent. The parties were notified by way of an email on 20 January 2022 that the Commission would issue an Order, by consent, allowing further time for Ms Drake's application to be made and would provide short reasons for the decision.

• [3] This decision records the reasons as to why I am satisfied exceptional circumstances exist such that I may exercise the discretion to allow further time for Ms Drake to make her unfair dismissal application under s 394(3) of the Act.

MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION

• [4] 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". Exceptional circumstances have been defined as 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.[2] 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.[3]

• [5] 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.

• [6] Relevant to the Commission's consideration of this question are the provisions in s.394(3) of the FW Act:

(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."

• [7] 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.

• [8] 14 February 1994 is recognised by Melba as Ms Drake's employment commencement date, being the date she commenced with the Department of Health and Human Services. Ms Drake appears to have had some form of working relationship with Melba from 2019 and was ultimately Seconded to Melba on 1 January 2021 in the position of Advanced Disability Support Worker in Melba's South Division. There is nothing before the Commission of any issues with respect to Ms Drake's employment until October 2021.

• [9] On 7 October 2021, the Acting Chief Health Officer issued the COVID-19 Mandatory Vaccination (Workers) Directions (the Workers Directions). The Workers Directions required Melba to, amongst other things, obtain information on the vaccination status of its employees classified as "care workers" by 15 October 2021. As a support worker, Melba considered Ms Drake fit the classification of "care worker" under the Workers Directions.

• [10] On 8 October 2021, the CEO of Melba sent an email notifying its employees that if they did not comply with the requirements under the Workers Direction, including by disclosing their vaccination status, they would be removed from all rostered shifts.

• [11] On 14 October 2021, the Respondent issued its COVID-19 Workplace Vaccination Policy which relevantly provided that

• any employee who did not meet the COVID-19 vaccination requirements would be removed from the roster;
• Melba may approve an employee to access their paid leave entitlements but leave without pay would not be approved; and
• where paid leave was not approved, the relevant cessation of employment procedures would commence.

• [12] On 14 October 2021, Ms Drake emailed Melba management stating that she believed it was her legal right to refuse to disclose her personal medical history anyone in Melba, stating that she would not be using her leave if she was unable to work and requesting an explanation as to next steps. She further stated that she would not be resigning. Melba responded stating, that Ms Drake's vaccination information would be kept confidential and that it would commence "cessation of employment processes" if the Applicant did not apply to take paid leave.

• [13] Ms Drake did not provide Melba with her vaccination information.

• [14] Melba sent a letter dated 4 November 2021, but which appears to have been received on 9 November 2021, notifying Ms Drake of a "proposed termination" of her employment for failing to meet the inherent requirements of the role by not providing proof of vaccination. The letter advised the termination of Ms Drake's employment would take effect on 16 December 2021 A later email from Melba on 26 November 2021 confirmed to Ms Drake that her "employment has been terminated with notice for a failure to comply with an inherent requirement" with the date of effect of that termination being 16 December 2021.

• [15] Unfortunately, on 9 December 2021 Ms Drake's husband was placed in intensive care and died a few days later on 12 December 2021. Ms Drake says about the circumstance that she has "been suffering from grief ever since and unable to go ahead with this matter earlier". A brief witness statement provided by Ms Drake's daughter sets out that she is struggling emotionally because of the death of her husband and other factors and that she required family assistance in order to make this application. Further, Ms Drake "has been experiencing ongoing grief and has been unable to focus on something of this nature".

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

• [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. 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.[4]

• [17] Ms Drake provided the following brief reason for the delay:

"I had a family tragedy on the 9th of December, where I then spent several days in ICU, which resulted in the death of a loved one. Have been suffering from grief ever since and unable to go ahead with this matter earlier."

• [18] Ms Holly Lightlowler, Ms Drake's daughter, provided the following short witness statement in support of the extension of time:

"I am hereby stating that I was an official witness to the tragedy and trauma that Amber Drake was subjected to as of the 9th of December. Due to this tragedy, she has been experiencing ongoing grief and has been unable to focus on something of this nature. Amber Drake was already suffering from stress and anxiety due to assault and abuse in the workplace inflicted on her by a supported person, and so you could imagine how the loss of her husband has exacerbated those existing mental health issues. Losing her job on top of everything else has been extremely devasting for her. Due to all above factors Amber Drake is struggling emotionally and has required assistance from her family to go ahead with this claim. It is important to her that her case is heard and dealt with fairly so that she can receive the best possible outcome to her claim."

• [19] Ms Drake's reason for the delay rests wholly on her grief and trauma as a result of her husband's death. No evidence was led as to the events which have occurred after Mr Drake's death which may have explained the delay in filing, such as organising a funeral or otherwise, nor is there any medical evidence corroborating her trauma. Further, the death certificate provided to the Commission has been cropped such that only information relating to Mr Drake's identity and the date of his death are visible. No other evidence was put to me in relation to the actual cause of death. Notwithstanding that, I accept that Mr Drake was in an intensive care unit for several days from 9 December 2021 with her husband who then passed away.

• [20] The death certificate shows that Mr Drake passed away on 12 December 2021. Ms Drake's alleged termination of employment took effect on 16 December 2021. Ms Drake had until 6 January 2022 to file her unfair dismissal application, but did not do so until the following day, 7 January 2022.

• [21] I have considered whether Ms Drake believed she was making her decision withing the statutory timeframe as she declared in her F2 such that the real reason for the delay in her filing was ignorance of the timeframe.[5] However, in the circumstances, I am willing to accept that Ms Drake was genuinely impacted by the death of husband, that this has caused her significant grief and trauma which has in turn impacted her capacity to file the unfair dismissal application within the timeframe and that as a whole the circumstances give rise to an acceptable reason for the small delay.

• [22] I note that Ms Drake also lost her job in an agency she had worked with for close to 30 years, which may have added to her grief and trauma, and while that alone is generally insufficient to establish an acceptable reason for the delay,[6] I accept that it likely compounded the situation. I further note that the 21-day period from the date of dismissal was the holiday period. While it is trite to observe that this alone does not represent an acceptable reason for the delay,[7] I accept that the timing of this period may well have contributed to Ms Drake's trauma.

• [23] Ms Lightlowler mentions "stress and anxiety due to assault and abuse in the workplace inflicted on her by a supported person" which have led to "existing mental health issues". I have before me two bald medical certificates which certify Ms Drake as unfit for work over certain periods leading up to her dismissal. I also have emails before me which refer to a Workcover claim, but it is not clear what the claim concerns. In the absence of other evidence, I do not make a finding as to the assault at work or any pre-existing mental health issues arising from this event.

• [24] Having satisfied myself that an acceptable reason for the delay exists it follows that it weighs in favour of a finding of exceptional circumstances.

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

• [25] Ms Drake was notified of the dismissal on 9 November 2021 and it took effect on 16 December 2021. Both parties accept this as the date of the dismissal and therefore Ms Drake the full period of 21 days to lodge the unfair dismissal application. This is therefore a neutral consideration.

• [26] There is some evidence of a dispute with respect to leave entitlements before the Commission. However, there is no material before the Commission demonstrating Ms Drake took any steps to dispute her dismissal, except for the filing of the unfair dismissal application. This criterion therefore weighs against a finding of exceptional circumstances.

• [27] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted, particularly in circumstances where Melba have consented to a finding of exceptional circumstances. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [28] The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal.

• [29] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[8] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears an applicant's case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[9]

• [30] The Applicant contends her dismissal was unfair because she should not be compelled by her employer to disclose private medical information. Melba contends that by not disclosing her vaccination status Ms Drake was unable to perform work outside her home as a "care worker". It is difficult to say at this stage what the merits of the application are. This is so in circumstances where neither party has fully articulated its arguments, both being concerned with the jurisdictional issue being addressed in this decision. Accordingly, consideration of this criterion is a neutral factor in my determination.

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

• [31] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[10] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[11] In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues and who has been granted an extension of time for the making of a late application.[12] It is therefore a neutral consideration to my decision.

• [32] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Drake, I am satisfied there are exceptional circumstances in her case that warrant the granting of an extension of time. The circumstances are those set out in the analysis above, connected with the death of her husband and her consequential grief and inability to make her unfair dismissal application unaided. An order will be issued extending the time for the filing of Ms Drake's application to 7 January 2022.[13]

• [33] The application will now be programmed for the hearing of its merits as well as for the conduct of a Member Assisted Conciliation.

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

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

[5] See, Rose v BMD Constructions Pty Ltd [2011] FWA 673

[7] Smith v KJM Contractors Pty Ltd (2010) 201 IR 356.

[8] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

[9] Haining v Deputy President Drake (1998) 87 FCR 248, [250].

[10] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

[11] Jalil v BMD Constructions Pty Ltd [2014] FWC 9357, [10].

[12] Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38].

[13] PR737649

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