Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of the time prescribed - whether there are exceptional circumstances - whether discretion to extend should be exercised - extension of time refused - application dismissed.

• [1] On 18 January 2022, I decided ex tempore to refuse to allow Ms Natalia Potapova a further period within which she might be allowed to lodge an unfair dismissal remedy application and to therefore dismiss the application lodged outside of the time prescribed in s 394(2) of the Fair Work Act 2009 (Act). I issued orders to give effect to my decision on the same day.[1] These are the reasons for my decision.

• [2] The applicant, Ms Potapova, commenced employment with Alfred Health, the respondent, as a casual interpreter on 19 November 2018 and was dismissed from her employment with effect from 12 November 2021. Ms Potapova lodged her application under s 394 of the Act seeking a remedy in connection with her dismissal, which she alleges was unfair, on 6 December 2021. The reason for her dismissal related to her status as an unvaccinated employee without a medical exemption. The respondent was not permitted to allow such an employee to attend for work and so concluded that Ms Potapova was unable to fulfil the inherent requirements of the position (that is, being fully vaccinated or holding a medical exemption), and so dismissed Ms Potapova. The application was lodged three days outside the time prescribed in s 394(2) of the Act. Section 394(2) requires an application for an unfair dismissal remedy to be made within 21 days from the date on which the dismissal took effect, or within such further period as the Commission may allow. It is necessary, therefore, to consider whether Ms Potapova should be granted a further period within which to lodge her application.

• [3] The Act gives the Commission a discretionary power to extend the period within which an unfair dismissal remedy application may be lodged, but the power is exercisable only if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters set out in s 394(3).

• [4] Briefly, exceptional circumstances are circumstances that are out of the ordinary, or unusual, or special, or uncommon but need not be unique, or unprecedented, or even very rare. Exceptional circumstances might amount to a single event which is exceptional, or a combination of factors which individually are unexceptional but which, when combined, are such as to amount to or persuade the Commission that there are exceptional circumstances.

• [5] The matters which the Commission must take into account in assessing whether there are exceptional circumstances are set out in s 394(3) as follows:

"(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."

• [6] Each of the matters needs to be taken into account, assessed, and appropriate weight must be given, having regard to the evidence about those matters.

• [7] I will deal with each of the considerations in turn, beginning with the reason for the delay. The reason for the delay is concerned with the period after the 21-day period has expired or elapsed. This should be evident from the fact that an application that is lodged within the 21-day period is not delayed. We are here concerned about an explanation or a reason which might explain the whole of the period of the delay, in this case three days.

• [8] In her evidence, Ms Potapova gave the following reasons for the delay. First, Ms Potapova states that she was required to support her son who received a positive test for COVID-19 on 29 October 2021, during school exams. Second, Ms Potapova states that following the time spent providing support for her son she became unwell, providing a medical certificate that she was suffering from a medical condition from 20 November 2021 until 6 December 2021 and was unfit for her usual occupation.

• [9] As to to the first reason, her son's positive COVID-19 test occurred two weeks prior to the date of her dismissal and six weeks before the period of delay with which we are concerned. Further, she did not provide compelling evidence that the support she was required to provide to her son would have prevented her from filing an application or how it contributed to the delay. The application ultimately lodged by Ms Potapova contained minimal information and could have been populated in a short period of time. I am not persuaded that the first reason provides a satisfactory explanation for the delay. As to Ms Potapova's subsequent illness, I note that the medical certificate provided states that she was unfit for her usual occupation up to and including the 6 December 2021, the date she lodged her application. All this suggests is that Ms Potapova was unfit for her usual occupation. There is no evidence suggesting that she was sufficiently unwell so as to prevent her from lodging her application or that her incapacity was such that she was unable to lodge the application at a time earlier than the lodgement date. The second reason does not provide a satisfactory explanation for the delay. I am therefore unpersuaded that the reasons proffered by Ms Potapova for the delay amount to a satisfactory or compelling explanation for the delay. In those circumstances, the absence of any satisfactory explanation for the entirety of the delay means that this consideration weighs against a conclusion that there are exceptional circumstances.

• [10] Turning then to the notice of the date on which the dismissal took effect. It is uncontroversial that Ms Potapova was informed in writing of her dismissal on 11 November 2021, the day before the dismissal took effect. This means that on the day that the termination of the employment took effect, Ms Potapova was aware that that was the case. Consequently, she did not become aware of the dismissal after it took effect. In those circumstances, she had the full 21-days within which to lodge her application. This matter weighs against an applicant.

• [11] As to any action taken to dispute the dismissal, Ms Potapova's evidence was that she did not take any step to dispute her dismissal with her employer, other than lodging this application. If an applicant disputes a dismissal with his or her employer or brings the dispute to his or her employer's attention, the employer is on notice that there is a controversy about the dismissal, and so in such circumstances this might weigh in an applicant's favour. However, in this case there has been no such dispute raised with the employer and consequently the absence of any step taken to dispute her dismissal also weighs against the applicant.

• [12] As to prejudice, the respondent does not contend that it would suffer any prejudice generally or as a consequence of any grant of an extension of time. The delay period was quite short, and it would be surprising if any particular prejudice would ensue. The absence of prejudice in and of itself is not an exceptional circumstance nor would it without more justify such a conclusion, but I am prepared to weigh this consideration slightly in Ms Potapova's favour.

• [13] As to the merits, at this preliminary stage it is only appropriate to make a general and very preliminary assessment of the merits. It is undisputed that the respondent dismissed Ms Potapova based on her failure to provide evidence of a COVID-19 vaccination or an acceptable medical exemption in accordance with obligations imposed on the respondent by government health orders. Accordingly, she was dismissed because she was unable to fulfil the inherent requirements of the position (that is, being fully vaccinated or holding a medical exemption). I note, however, that as Ms Potapova was engaged as a casual employee, the respondent could have complied with the government health orders without terminating her employment, by continuing to not provide Ms Potapova with shifts until such a time as the applicant could provide the required evidence or the orders ceased to apply. Thus, prima facie, the application is not without merit.

• [14] The respondent says that the applicant would need to overcome a further jurisdictional hurdle if an extension of time were granted. It says that in order to be protected from unfair dismissal, an applicant must have completed a minimum employment period. As a casual employee, Ms Potapova's period of service does not count towards her period of employment unless she was a regular casual employee with a reasonable expectation of continuing employment on a regular and systematic basis. While Ms Potapova was engaged as a casual employee for about three years, at the time of her dismissal she does not appear to have been engaged on a regular and systematic basis. The respondent provided some evidence that the applicant had worked only a total of 33 hours in the period from 8 November 2020 to the time of her dismissal. However, this point is misconceived because it says nothing about the period of employment before November 2020, remembering that the applicant commenced casual employment in November 2018. It may well be that before November 2020, the applicant had already completed the minimum period of employment so that what happened thereafter is of no moment. In the circumstances I consider that the consideration weighs slightly in the favour of Ms Potapova, but not significantly so.

• [15] The final matter concerns the fairness as between Ms Potapova and persons in a similar position. The circumstances in which this consideration might arise include where there have been other decisions of the Commission of a similar factual basis, or where there are other employees of the employer who have faced similar circumstances. In essence, it is a comparison between the applicant and one or more other persons who have been dismissed. Neither party directed my attention to any relevant matter which would provide a basis for assessing whether there are matters which require consideration of fairness as between the Applicant and other people in similar positions, and I am not aware of any in any case. In those circumstances, this consideration weighs neutrally.

• [16] In my assessment, the absence of a satisfactory explanation for the delay weighs heavily against a conclusion that there are exceptional circumstances. While there are some matters which weigh in favour of Ms Potapova, these do not weigh so heavily as to outweigh the absence of a satisfactory explanation for the delay. In the instant case there is no single exceptional matter, nor a combination of exceptional factors, nor any combination of ordinary factors which, although individually of no particular significance, when taken together could be considered exceptional.

• [17] In those circumstances, I am not persuaded that there are exceptional circumstances. As there are no exceptional circumstances, the consideration of the exercise of my discretion does not arise. The unfair dismissal remedy application was therefore made outside of the time prescribed. Consequently, the unfair dismissal remedy application was not made in accordance with the Act and must be dismissed. As earlier noted, orders to this effect were made on 18 January 2022.

[1] PR737551

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