Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Ms Melinda Sutton for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Sutton's employment with Hepburn Shire Council (Hepburn) was terminated with effect from Thursday, 11 November 2021. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on Saturday, 4 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 Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on Thursday, 2 December 2021. The application was therefore filed 2 days outside the 21-day period. Ms Sutton asks the Commission to grant a further period for the application to be made under s.394(3). Hepburn opposes this request.

• [3] For the reasons set out below I am not satisfied on the material before me there are exceptional circumstances in Ms Sutton's case. Accordingly, I decline to allow further time for the making of her unfair dismissal application.

• [4] A hearing in respect of the application was held by me on 13 January 2022, at which Ms Sutton appeared on her own behalf and Ms Nicola Prestia, solicitor, of HR Legal appeared for Hepburn. Permission for the Respondent to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)). Evidence was given in these proceedings by Ms Sutton on her own behalf, and on behalf of Hepburn by Mr Bradley Thomas, Hepburn's Chief Executive Officer. A witness statement was also given on behalf of Ms Sutton from her partner, Mr Terry Hourigan.

MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION

• [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". 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.[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] 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."

• [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 consider these matters in the context of the Application.

• [9] Ms Sutton was employed by Hepburn between 3 April 2006 and 11 November 2021, most recently in the capacity of Revenue Officer. On 11 November 2021 she was dismissed by Hepburn for having failed to show to the Council that she had received two COVID-19 vaccinations despite being directed to do so and cautioned that she may be dismissed if she did not establish to Hepburn's satisfaction that she was double-vaccinated.

• [10] Before the pandemic started, in March 2020, Ms Sutton worked from Hepburn's offices in Daylesford. Once it started she was, according to Hepburn, "permitted to temporarily work from home where possible", along with all other employees not classified as an "Authorised Worker" for the purposes of the Chief Health Officer's Directions in force at the time.[3]

• [11] In October 2021, the Chief Health Officer (Vic) issued the COVID-19 Mandatory Vaccination (Workers) Directions. On the basis of those directions Hepburn considered it was required to establish its employees were fully vaccinated in order to return to its offices.[4] Hepburn wrote to its employees including Ms Sutton about the subject on 5 and 15 October 2021. The first correspondence advised employees that "mandatory vaccination requirements now take into account the majority of staff" and categorised requirements according to the work employees performed. For Ms Sutton, as an "Other" employee, the relevant requirement was "Nil at this stage however will be required to be fully vaccinated to return to the office".[5] The second correspondence noted changes in the Chief Health Officer's Directions and advised "[a]ll Staff must have had their first dose of vaccination by today (15th October) or by today have a booking to have your first dose by next Friday (22nd October). You will need to have had your second dose by the 26th November."[6] A question was posed and answered in the correspondence as well as directions being given as follows;

"So, what happens if I don't have my first vaccination today or my booking for my first by the 22nd October?

• Effective tomorrow you are not legally allowed to work per the Directions, and please do not work, this includes working at home.

• Given the short period of notice we will allow staff to take Pandemic Leave next week while you work through the first dose process.

• Effective the 22nd October if you still don't have the first dose you will need to take Annual or Long Service Leave.

• Effective the 6th November if you still don't have the first dose we will undertake disciplinary action.

• Effective the 26th November you need to have the second dose, if you haven't by that time you will be able to take Annual or Long Service leave through to the 10th December, and if still not double dosed we will undertake disciplinary action.

If you have a medical exemption from your GP that is perfectly acceptable and needs to be sent through to People and Culture Team."[7]

• [12] Similar sentiments were expressed to staff in a Frequently Asked Questions sheet sent to them by Mr Thomas on 18 October 2021.[8]

• [13] Attempts were made by Ms Sutton's supervisor to contact her on Friday 15 October 2021, however Ms Sutton did not speak to that person until Monday18 October 2021 when she learned she had been stood down from work because she was not vaccinated.[9]

• [14] Ms Sutton disagreed with elements of Hepburn's directions questioning whether the Chief Health Officer's directions covered a person who was able to work from home, putting forward that the directions were "only to capture those worker's that are leaving their ordinary place of residence". In its response on 18 October 2021, Hepburn maintained its direction to her and stated it required her to take active steps toward double vaccination;

"If you choose not to have your first vaccination today or make a booking for your first vaccination by the 22nd October:

• You are not legally allowed to work per the Directions, this includes working at home.

• Given the short period of notice on the change to the CHO directions we are offering staff the opportunity to take Pandemic Leave this week while you work through the first dose process.

• Effective the 22nd October if you still don't have the first dose you will need to take Annual or Long Service Leave.

• Effective the 6th November if you still don't have the first dose we will undertake disciplinary action.

• • Effective the 26th November you need to have the second dose, if you haven't by that time you will be able to take Annual or Long Service leave through to the 10th December, and if still not double dosed we will undertake disciplinary action."[10]

• [15] Hepburn issued further advice and directions to staff on 27 October 2021,including advice that staff members working from Hepburn's offices would be required to be double vaccinated. The terms of the communication were that "Effective 6pm Friday 29 October you can attend the office only if you are double dosed. This includes office and administration offices at the depots."[11] Further, and germane to a requirement that staff were to no longer work from home and to instead be available to work from the Hepburn's offices it was communicated that;

"Effective the 26 November all staff will have to double dosed and we will return to our working flexible arrangements. So, the office is your default place of work, and if you have a flexible working from home arrangement in place you can work at home for up to 50% (for many roles)."[12]

• [16] Mr Thomas states there was no contact between Ms Sutton after 18 October 2021, [13] though he does refer to a phone call made by Mr Andrew Burgess, Hepburn's Director of Organisational Services, to Ms Sutton on or about 9 November 2021 in which Ms Sutton confirmed she remained unvaccinated.[14] Ms Sutton confirms this call with Mr Burgess and that she confirmed to him she had not been vaccinated. Further, in that conversation she sought but was refused a period of extended leave or to be able to continue to work from home.[15]

• [17] Mr Thomas' evidence is that as a result of the matters passed on to him about the phone call on 9 November 2021 he took the view that;

"While Melinda was temporarily permitted to work from home during the COVID-19 pandemic, this was not a permanent arrangement, and it was a requirement of her role that she be able to work onsite and in the community and comply with Council's directions.

As such, I made the decision to terminate Melinda's employment and instructed Chrissy Gordon, Coordinator People and Culture to send Melinda a termination letter signed by me on 11 November 2021."[16]

• [18] Ms Sutton strongly disputes she could not perform her work from home.

• [19] The termination of Ms Sutton's employment was communicated to her and took effect on Thursday, 11 November 2021.

• [20] There appears no real question that she knew of the capacity to make an application and that such was to be done within 21 days of her dismissal taking effect. That is, Ms Sutton does not say to the Commission that she was unaware of the time limit. Instead she says that when she first came to make the application, on 2 December 2021, she knew that date to be the last day to file her application within time.

• [21] Her intention was to lodge the application online from her laptop on 2 December 2021. However, her laptop only operates by direct power as its battery has no life and requires replacement. When she came to make the application she realised her partner, Mr Hourigan, had left for work taking her laptop power cord rather than his. She then planned to make the application the following day, however, Mr Hourigan forgot to leave her power cord behind before leaving to work. Ms Sutton lodged the application the following morning, Saturday 4 December 2021.

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

• [22] 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.[17]

• [23] The reason put forward by Ms Sutton for the delay is that, having got to the 21st day, Thursday 2 December 2021, she was unable to file her application because she did not have access to her laptop's power-cord and did not have such access either on the following day, Friday 3 December 2021. Mr Hourigan left for work early on 2 December. Although it is argued he "had been getting up at 4am and not getting home until late for the last several weeks"[18] it is not argued that Mr Hourigan did not return home at all on 2 December or 3 December. Ms Sutton did not make any attempts to make an application before 2 December 2021. She concedes she had access to a mobile phone at the relevant time and could have made an application either through mobile internet access or by phone, but did not know she could do so.

• [24] These matters do not amount to an acceptable explanation for the delay in filing the application. Having established, on 2 December 2021, that she was unable to make her application that day, Ms Sutton took no steps to resolve the issue. She knew it was the last day to file within time, and merely waited for Mr Hourigan to return. There is no evidence of phone-calls to the Commission about what could be done, nor of an attempt to resolve the issue by searching online using her phone. Despite Mr Hourigan likely returning home the same day as the problem became known there was no attempt to file before midnight, or even the following day when the same problem arose. Instead, the application was made on Saturday 4 December 2021 at 8:05AM.

• [25] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [26] Ms Sutton was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is therefore a neutral consideration.

• [27] There is no material before the Commission demonstrating Ms Sutton took any steps to dispute her dismissal, except for the filing of the application. This criterion therefore weighs against a finding of exceptional circumstances.

• [28] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted, and none is asserted by Hepburn. 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.

• [29] 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.

• [30] 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.[19] 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.[20]

• [31] The dispute between the parties is whether Hepburn was entitled to direct that its offices would be Ms Sutton's default place of work and that she would need to be double vaccinated in order to do so. Ms Sutton contests both those matters. Her case in respect of the direction to be available for work from the Council's offices would depend on a finding that Hepburn had been unfair in its treatment of her, perhaps by not considering she could do her work from home. Hepburn has not set out to any degree its response on that issue, although its arguments that it required staff generally to work from offices and be vaccinated in order to do so likely have merit (absent a finding there had been specific unfairness in respect of Ms Sutton). Hepburn's statements to Ms Sutton and staff generally that vaccination was required when working from home is likely contestable and in error, however such would be unlikely on its own to determine the case in Ms Sutton's favour.

• [32] In all, I consider Ms Sutton's case is not in the "highly meritorious" category referred to above.

• [33] Nonetheless, in the absence of full argument of either party's case, I regard this criterion as a neutral consideration in my decision.

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

• [34] 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.[21] 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.[22] 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.[23] It is therefore a neutral consideration to my decision.

• [35] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Sutton, I am not satisfied that there are exceptional circumstances. In my view, there are no 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 is issued at the same time as this decision.[24]

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

[3] Exhibit R1, Witness Statement of Bradley Thomas, [4]; Hearing Book, p.105.

[4] Ibid, [5]-[6]; Hearing Book pp.105-106.

[5] Ibid, Attachment BT-2; Hearing Book, pp.138 - 139.

[6] Ibid, Attachment BT-3; Hearing Book, p.142.

[8] Ibid, [12]; Hearing Book, p.106; Attachment BT-5; Hearing Book, pp.149 - 161

[9] Exhibit A3, Applicant's Outline of Argument, [5]; Hearing Book, p.18.

[10] Exhibit R1, Attachment BT-4; Hearing Book, pp.145 - 148.

[11] Exhibit R1, Attachment BT-6; Hearing Book, p.163.

[13] Ibid, [13]; Hearing Book, p.106.

[15] Exhibit A2, Witness Statement of Melinda Sutton; Hearing Book, p.23.

[16] Exhibit R1, [15]; Hearing Book, p.107.

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

[18] Exhibit A3, [4]; Hearing Book, p.18.

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

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

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

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

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

[24] PR737563

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