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 - extension not granted - application dismissed.

• [1] On 17 June 2022, Ms Sandra Mueller made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Coles Supermarkets Australia Pty Ltd (Coles). As it was evident from Ms Muellers' Form F2 - Unfair Dismissal Application (Form F2) that the application was not made within 21 calendar days after Ms Muellers' dismissal took effect, Ms Mueller was required to seek an extension of time in which to file her unfair dismissal application.[1] I conducted a determinative conference on 13 July 2022 to determine whether an extension of time should be granted. Ms Mueller gave evidence on behalf of herself, and Mr Matthew Scott (Store Manager of the Coles Bridgewater store) gave evidence for Coles.

• [2] While there is dispute between the parties as to whether Ms Mueller was dismissed and/or a person protected from unfair dismissal,[2] I will determine whether her unfair dismissal application was made within the period required in s.394(2) of the Act first because this is the first of the four matters referred to in ss.396(a)-(d) of the Act that the Commission must decide before considering the application's merits.

• [3] A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[3] Ms Mueller says she was notified of her dismissal from her employment with Coles in an email from Coles dated 26 May 2022 and that her dismissal took effect that day. Coles, however, relied on the Ms Muelller's engagement as a casual employee to assert both that Ms Mueller was not dismissed within the meaning of s.386(1)(a) of the Act and that the employment relationship between the parties came to an end on 24 February 2022, when Ms Mueller was rostered and performed work for the last time.

• [4] As neither party has contended that this is a matter in which an unfair dismissal application was made within 21 days after a dismissal took effect, it falls for me to determine I am satisfied that there are exceptional circumstances taking into account the criteria in s.394(3) of the Act and if so, whether it is appropriate to exercise my discretion to extend the time for Ms Mueller to make her unfair dismissal application.

• [5] 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.[4] 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.[5]

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

(a) the reason for the delay;

(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);

(e) the merits of the application; 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. I now consider each of these matters in the context of Ms Mueller's application for an extension of time.

Reason for the delay - s.394(3)(a)

• [8] Ms Muellers contends that her dismissal took effect on 26 May 2022 and therefore, the delay required to be considered in this case is the period beyond the expiration of the prescribed 21-day period after 26 May 2022. If this is accepted, Ms Mueller had until midnight on 16 June 2022 to file her application in order for it to have been received within 21 days after the dismissal took effect. As the Form F2 was filed with the Commission by way of email sent at 11:52pm on 17 June 2022, Ms Mueller's unfair dismissal application was, on her case, made 1 day out of time.

• [9] The position of Coles is that Ms Mueller's employment with Coles came to an end at the conclusion of her last shift on 24 February 2022 and therefore, the first day of the 21-day period commenced on 25 February 2022. If this is accepted, Ms Mueller had until midnight on 17 March 2022 to make an unfair dismissal application and as her application was not made until 17 June 2022, the position of Coles is that it was made 92 days out of time.

• [10] 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 the circumstances must be considered.[6]

• [11] I intend to deal Ms Mueller's application for an extension of time having regard to the scenario of the 1-day delay she has advanced.

• [12] Ms Mueller said that she had "put off applying" because she "was not confident going up against such a large company". Nonetheless, Ms Mueller also said she made a counting error and miscalculated the last day of the 21-day period. Having thought the 21-day period finished on 17 June 2022 and that she had left it to "the very last minute", Ms Mueller believed she had filed her application on the final day and that it was therefore within time. This indicates that Ms Mueller was aware of the 21-day limit for making an unfair dismissal application before she filed her application.

• [13] While I accept Ms Mueller made a genuine mistake, I do not consider she has provided an acceptable or reasonable explanation for the delay. The error was hers alone and while Ms Mueller may not have had prior experience with unfair dismissal laws and processes or dealing with the Commission, it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[7] and unfamiliarity is not exceptional. Nor are feelings of apprehension towards a former employer when contemplating whether or not to make an unfair dismissal application or a perceived power imbalance exceptional.

• [14] I am therefore not persuaded having regard to the material before me that there was an acceptable or reasonable explanation for the 1-day delay. The absence of an acceptable or reasonable explanation weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [15] On or around 25 January 2022, Coles notified all its team members, including Ms Mueller, by email, that effective from 25 February 2022 Coles was imposing COVID-19 vaccination requirements as a condition of working at any Coles site nationally. As such, a team member could not continue to work at any store after 25 February 2022, unless he or she obtained at least one dose of a COVID-19 vaccination and provided proof of his or her vaccination status. Ms Mueller refused to obtain a COVID-19 vaccination by the required date.

• [16] The Respondent submits that Ms Mueller knew that she would be 'dismissed' and would not be rostered for any further shifts from 26 February 2022 if she failed to comply with Coles' COVID-19 vaccination requirements and this is apparent from Ms Mueller's Form F2 and Outline of Argument at para [5].

• [17] I am satisfied Ms Mueller considered she had been dismissed from at least 26 May 2022. Based on her contention that her dismissal took effect on that day, Ms Mueller had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal - s.394(3)(c)

• [18] Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[8] Ms Mueller stated:

"...I became aware that I would be dismissed 4 months before the actual dismissal, but only 1 month before I was not allowed back to work. I sent an email[9] stating that I thought it was unfair. I spoke to my online manager at work and also the regional Tasmanian manager of Coles Mr John Carrington by phone. He asked me what I wanted and I told him it was to stay working."[10]

• [19] Ms Mueller also challenged what she considered to be her dismissal in an email sent to Coles on 26 May 2022[11] but did not make any further contact with Coles after this and nor did she take any other action against Coles in addition to filing her unfair dismissal application.

• [20] In the circumstances, this factor weighs in favour of a finding that there are exceptional circumstances.

• [21] Ms Mueller submits that there was no prejudice to Coles caused by the delay in filing the application one day late. Coles asserts that it will suffer prejudice if an extension of time is granted due to the time and costs that will accrue in defending Ms Mueller's unfair dismissal application, which it contends, lacks merit.

• [22] I cannot identify any greater prejudice that would accrue to Coles caused by the application being dealt with now than there would have been had it been made within the 21-day time period. 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 very little weight in the consideration of whether there are exceptional circumstances.

• [23] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [24] While Coles submits that Ms Mueller's application has no merit, it makes a preliminary submission that the Commission does not have jurisdiction to hear Ms Mueller's application. It argues this on the basis that Ms Mueller was not a person protected from unfair dismissal pursuant to s.382 of the Act because she did not complete the minimum employment period of 6 months on account of being a casual employee not employed on a regular and systematic basis with a reasonable expectation of continuing employment on a regular and systematic basis.[12] Coles also challenges the jurisdictional basis of the application by contending that the Commission cannot be satisfied that Ms Mueller was dismissed within the meaning of s.386 of the Act.

• [25] I observe that the question of whether Ms Mueller had completed the minimum employment period would turn on disputed points of evidence that would need to be tested if an extension of time were granted. Much would therefore depend on factual findings and subsequent fulsome submissions from the parties. The resolution of the contention of Coles that Ms Mueller was not dismissed would also require factual findings to be made and developed legal argument regarding the terms and conditions of her engagement as a casual employee. While I have made these observations on the jurisdictional objections raised, they of course do not go to the merits of the application Ms Mueller seeks to pursue.

• [26] Assuming the Commission was ultimately satisfied there were no jurisdictional barriers to Ms Mueller's application, the determination of the merits of Ms Mueller's application would require consideration of the assertion of Coles that there was a valid reason for its decision to cease rostering Ms Mueller. Coles submits this arose from the requirements of its COVID-19 Vaccination Policy. Ms Mueller says she would have turned up for work if rostered and asserts that her dismissal was unfair due to the following:

a) She was "put on hold without being fired for 3 months";

b) She was told she must vaccinate to keep her job, but Coles would not and did not "fire" her for this reason;

c) She was not given a separation certificate despite having repeatedly asked for one during the period she was "put on hold";

d) That she was told that she was fired for not getting any shifts, and not for failing to get vaccinated, was a lie;

e) She was let go despite having worked an average of 20 hours per week on average for 4.5 years.[13]

• [27] The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[14] I am not presently able to form a concluded view about the merits of Ms Mueller's application. The final determination of the merits would turn on some contested points of fact which would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Further, the parties would need the opportunity to fulsomely present their respective cases. I consider the merits of the application to be a neutral factor in considering whether to extend time.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [28] 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.

• [29] Ms Mueller made the submission that she did not consider her position to be any more or less fair than any other person in her position. Coles submitted that if the Commission were to exercise its discretion to grant an extension of time in this case it would create an unfair and inequitable difference between Ms Mueller and other persons in a like position. Coles cites a number of previous Commission decisions which it says involved former employees being denied an extension of time after having filed their unfair dismissal application late due to a miscalculation of the statutory time period or because of their concerns about the disparity between their capability and resources in making an application as compared to their former employer.[15]

• [30] I am not persuaded to conclude that this factor is anything beyond a neutral consideration in this case, given the particular circumstances that ultimately lead to Ms Mueller's application being made.

• [31] 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) of the Act 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. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:

"[38] 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.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."[16]

• [32] Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, 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, Ms Mueller's unfair dismissal application is dismissed.

Mr J Goyal for Coles Supermarkets Australia Pty Ltd.

[1] Fair Work Act 2009 (Cth), s.394(2).

[2] Ibid at s.396(b).

[3] Ayub v NSW Trains [2016] FWCFB 5500.

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

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

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

[9] For emails sent by the Applicant, see DCB at pages 58-59.

[10] Exhibit A2 at Question 5, DCB at p.11.

[12] Fair Work Act 2009 (Cth), s.384(2)(a).

[13] Exhibit A2 at Question 7, DCB at p.11.

[14] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

[15] See for example Ryan v Finney (t/as Cutprice Car Rentals) [2020] FWC 1273, Anthony Bishop v BHP Coal [2022] FWC 1051, Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, Kim v EBS Business Solutions (t/as A2K Technologies Pty Ltd) [2021] FWC 47.

[16] [2018] FWCFB 901.

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