Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy -extension of time - application dismissed.

• [1] Mr Nathan Murray has made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which he seeks a remedy in relation to his dismissal. Mr Murray commenced employment with Ambulance Victoria in November 2016. His employment was terminated by letter dated 6 December 2021. That letter indicates that Mr Murray's dismissal was effective on 6 December 2021. Mr Murray says, and Ambulance Victoria appears to agree, that the effective date of his termination of employment was 7 December 2021.

• [2] Mr Murray filed his application with the Commission on 30 December 2021.

• [3] The FW Act requires that an application for remedy from unfair dismissal must be made within 21 days of the date the dismissal took effect unless the Commission extends that time, having found the existence of exceptional circumstances.

• [4] On 4 January 2022 I issued directions to enable me to determine the application for an extension of time. Mr Murray was required to file any submissions and evidence in support of his application by 13 January 2022. To the extent it may wish to do so Ambulance Victoria was required to file any submissions and evidence by 20 January 2022.

• [5] Mr Murray complied with the directions and filed submissions in support of his claim for an extension of time. Ambulance Victoria indicated that it did not oppose the grant of the extension of time although disputes that the dismissal of Mr Murray was unfair as articulated in its Form F3 - Employer response.

• [6] The matter was dealt with by way of determinative conference.

WHAT WAS THE DATE OF DISMISSAL AND WHEN WAS THE APPLICATION DUE TO BE FILED?

• [7] The letter of termination given to Mr Murray is dated 6 December 2021. It states, in part, "This letter is notice of the termination of your employment effective today 6 December 2021."

• [8] Mr Murray said he received that letter on 7 December 2021.

• [9] In its response to the application of Mr Murray, Ambulance Victoria, in answer to a specific question, advised that Mr Murray was notified of his dismissal on 7 December 2021 and that it took effect that day. Despite the content of the termination letter, Ambulance Victoria do not dispute that the notice was given on 7 December 2021 and that was the effective date of dismissal.

• [10] In these circumstances I accept that the notice of termination and date of effect of that termination was 7 December 2021.

• [11] To have been filed within time Mr Murray was required to make his application by midnight on 28 December 2021. That day was a public holiday and so, by virtue of the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth) the application was required to be made by midnight on 29 January 2021.

• [12] Mr Murray's application, having been made on 30 December 2021, was therefore filed 1 day out of time.

• [13] The FW Act requires that an application for unfair dismissal be made within 21 days after the effective date of dismissal. Section 394(3) of the FW Act sets out those matters to which the Commission must have regard in deciding if there are exceptional circumstances such that an extension of time might be granted. Section 394(3) states as follows:

394 Application for unfair dismissal remedy

(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.

• [14] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [15] 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.[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]

• [16] Mr Murray said that he received the letter terminating his employment on 7 December 2021. "Assuming a notice period [of] 4 weeks" he calculated that he had 21 days from 4 January 2022 within which to make his application.

• [17] Mr Murray said he received further correspondence from Ambulance Victoria including details of his final pay and a statement of service on 24 December 2021 but "did not open" that correspondence until 27 December 2021. On reading the breakdown Mr Murray said he became aware that he had been paid "in lieu of [n]otice" and that his day of separation was, in fact, 7 December 2021.

• [18] Mr Murray said he then downloaded the Form F2 - Application and "began working on the application". He attempted to call the Commission on 29 December 2021 to check when his application was required (given the public holidays) but was unable to get through. He then saw on the website that the Commission call centre was closed that day. He called again "first thing" on 30 December 2021 and was told his application had been due the previous day. He then made his application that afternoon.

• [19] Mr Murray submits that his application was affected by falling due on a public holiday (28 December 2021) and that the Commission was not available to take his call on 29 December 2021. He submitted that, had he known his application was due on 29 December 2021, he would have submitted it that day but he could not get confirmation of this from the Commission.

• [20] Mr Murray agreed that his letter of termination of employment said "This letter is notice of the termination of your employment effective today 6 December 2021" and further that it said he would be "paid in lieu of notice of termination". Mr Murray said however that he did not understand what "paid in lieu of notice" meant and that he thought the "notice" referred to in the letter meant that he was being given 4 weeks' notice.

• [21] Ambulance Victoria make no submissions on this issue.

• [22] I am satisfied that the reason for the delay in Mr Murray making his application on time was that he did not wish to make his application until he had confirmed with the Commission when the 21-day period within which it was due would expire.

• [23] Mr Murray did not attempt to contact the Commission until 29 December 2021. He did this after delaying opening correspondence from Ambulance Victoria until 27 December 2021 even though it had arrived 3 days earlier on 24 December 2021. This occurred in circumstances where Mr Murray was aware of the 21-day filing requirement for an application.

• [24] Mr Murray had no explanation as to why he did not file his application prior to being in contact with the Commission on 30 December 2021 beyond wanting to confirm when the application needed to be made to be within time. He was aware on 27 December 2021 that his employment had ended on 7 December 2021 and he also knew that he had 21 days within which to make his application. Even if the public holiday on 28 December 2021 affected the due date it is not clear why, out of abundance of caution, he did not make his application that day or the next. There is nothing on the Commission's website that suggests you cannot make an application until the 21st day after the date of dismissal. To the extent that he may have been confused as to when his application needed to be filed, that does not explain why he chose to wait until this was confirmed.

• [25] The explanation for the delay puts the reason for the delay solely with Mr Murray, his inattention to detail (in the termination letter), his delay in opening correspondence (the final payment information of 24 December 2021) and his decision to not make his application until he contacted the Commission in circumstances when he knew his application may have been due on 28 (or at best 29) December 2021.

• [26] That Mr Murray may have been confused and did not understand what payment "in lieu of notice" meant does not provide an explanation for the delay. Mr Murray could easily have found out. That he might have been confused by the letter of termination he received is not an adequate explanation for the delay. Mr Murray could have sought to have this explained.

• [27] Mr Murray had ample opportunity to make his application within time but he did not pay adequate attention to the letter of termination. He then delayed (inexplicably) the opening of further correspondence from Ambulance Victoria. Even when he did discover his error in determining when his unfair dismissal application was due to be filed he still delayed. Had he made his application on 27 January 2022 (or on either of the following two days) when he discovered his error, his application would have been made within time.

• [28] Mr Murray chose the steps he took - no-one required him to wait until he did and it was not a case of him not being able to complete his application until he spoke to the Commission.

• [29] While it is the period of the delay which is relevant, the lack of activity by Mr Murray prior to the expiration of the 21 days tells against an adequate explanation for the delay.

• [30] The explanation for the delay does not weigh in favour of a finding of exceptional circumstances.

Whether Mr Murray became aware of the dismissal after it had taken effect

• [31] Mr Murray became aware of his dismissal on 7 December 2021. This was the day it took effect, despite what was contained in the letter of dismissal.

• [32] Mr Murray said that he attended a meeting with Ambulance Victoria on 6 December 2021. This meeting however did not result in the termination of his employment. He then attended a meeting the following day and was then given the letter of termination, although the letter remained dated 6 December 2021.

• [33] Ambulance Victoria do not dispute that the dismissal took effect on 7 December 2021.

• [34] I am satisfied that the dismissal took effect on 7 December 2021 and that Mr Murray became aware of the dismissal that day.

• [35] Mr Murray has not taken any other action to dispute his dismissal.

• [36] Mr Murray says that no prejudice would accrue to the employer by the grant of the extension of time.

• [37] Ambulance Victoria make no submission that it would be prejudiced by the delay should he extension of time be granted.

• [38] I am satisfied that there is no prejudice to the employer caused by the delay.

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

• [40] 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.[4] 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.[5]

• [41] Mr Murray's employment was terminated as he was unable to perform his role as he had not been vaccinated for COVID-19. Ambulance Victoria, by virtue of the Mandatory Vaccination Directions made pursuant to the Public Health and Wellbeing Act 2008, is not permitted to have an unvaccinated person work from an Ambulance Victoria location.[6]

• [42] Mr Murray claims that there is merit to his claim that he was unfairly dismissed.

• [43] Mr Murray submits that the Mandatory Vaccination Directions did not require that his employment be terminated if he was not vaccinated but this is the reason given for the termination of his employment. He says that he is able to perform his duties as a paramedic just as he could prior to 15 October 2021.

• [44] Mr Murray further submits that he had sought to be placed in an alternative role while the State of Emergency remained in effect, but this request was ignored by Ambulance Victoria. He also says that he asked to be considered for 12 months leave without pay to "allow further time for changes in government requirements [and] safer vaccine options to become available."

• [45] Ambulance Victoria dispute the claims made by Mr Murray with respect to the merit of his claims.

• [46] I am not convinced that there is merit in Mr Murray's claim. Mr Murray's employment was terminated because he could not perform his role. Mr Murray was a paramedic. Without a vaccination he could not attend Ambulance Victoria premises and therefore could not perform his role. Mr Murray was not vaccinated.

• [47] The merits of Mr Murry's case are not strong.

• [48] 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.[7] 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.[8]

• [49] The Commission is aware of another application for an extension of time in relation to the same employer which was recently successful. However, the reasons for the delay in that matter differed from those presented by Mr Murray and the merits of that matter differed to those here. For these reasons I do not consider that matters of fairness arise.

• [50] When the reason for the delay is considered in conjunction with the weak merits case, I am not convinced in this case that it has been shown that there are exceptional circumstances such that an extension of time should be considered. No other factor is persuasive in this matter.

• [51] The application for an extension of time is refused.

• [52] The application is therefore dismissed. An Order[9] to this effect will be issued in conjunction with this decision.

A. Millar, Johnson Winter & Slattery, for the Respondent.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]

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

[4] Kyvelos v Champion Socks Pty Limited (2000) Print T2421 at [14]

[5] Haining v Drake and Other (1998) 87 FCR 248 at [250]

[6] See letter of termination given to Mr Murray

[7] Wilson v Woolworths [2010] FWA 2480 at [24]‒[29]

[8] Jalil v BMD Constructions Pty Ltd [2014] FWC 9357 at [10]

[9] PR737962

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