Fair Work Act 2009

s.394 - Unfair dismissal

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

• [1] Stephen Michael O'Dea, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Grampians Health, whom I will refer to as the Respondent.

• [2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

• [3] Having heard the parties, I now proceed to give these reasons for my decision ex tempore.

• [4] This published decision reflects the decision I gave ex tempore on 18 February 2022 with corrections for grammatical, syntactical and any other insignificant errors.

• [5] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

• [6] The parties agree, and I so find, that the dismissal took effect on 15 December 2021 and the application was received by the Commission on 17 January 2022, some 33 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.

• [7] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:

(b) whether the Applicant first became aware of the dismissal after it had taken effect;

(c) any action taken by the Applicant to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the Applicant and other persons in a similar position.

• [8] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

• [9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 6 January 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until 17 January 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.

• [10] As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.

• [11] As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.

• [12] The Applicant submitted that the delay was for the following reasons:

• Difficulty accessing computers and other technology.

• Poor internet reception resulting in attachments often failing to open.

• The only portal to the internet being the mobile phone.

• Inability to access a motor vehicle or enter a public library.

• Mental health issues resulting from the Applicant's dismissal.

• [13] In relation to the reason for the delay, the Respondent submitted that:

• The above events do not constitute exceptional circumstances that warrant granting an extension of time.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

• [14] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

• [15] I have considered the detailed material before me as to the circumstances surrounding the Applicant's termination. I note the Applicant expresses strong opposition to the Victorian Government's COVID-19 vaccination requirements. That said, the material before me, taken at its highest, does not support a finding that the Applicant took action to dispute the dismissal prior to making the Application.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

• [16] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

I will now turn to the merits of the application

• [17] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [18] Having examined these materials, it is evident to me that the parties are in dispute as to the process by which the Respondent implemented the Victorian Government COVID-19 vaccination requirements. In essence the Respondent maintains that it conducted a fair and reasonable process. The Applicant states that he was given insufficient notice to prepare his reply and respond to directives from the Respondent. The merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter" in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.

• [19] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

• [20] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

• [21] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

• [22] As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.

• [23] The Applicant indicates that "postal service delays account for the largest part of the late arrival". As to postal delays, the Full Bench of the Commission in Ceres Agricultural Company Pty Ltd t/a Ceres Agricultural Company v Joshua Regan [2016] FWCFB 371 has confirmed that:

"a failure to post an application to the Commission in sufficient time for it to arrive within Australia Post's standard timeframes is not, of itself, an exceptional circumstance."[2]

• [24] The Applicant's materials indicate he posted his application on 4 January 2022, two days before the expiry of the 21-day statutory limit. I also note that the Applicant mistakenly posted the Application to the attention of the Ombudsman, a further factor contributing to the delay. I note for completeness that the office of the Ombudsman received the Application on the 12 January 2022, also 6 days outside the time for the making of the Application.

• [25] I note that the Applicant had some time to lodge his application following his dismissal and did not attempt to post his application by express post or other means that would have expedited its delivery, choosing instead to post his application by registered mail. At hearing the Applicant stated he followed the advice of the Post Office. An unfair dismissal application can be made over the telephone or it can be lodged by email, online or by fax. I further note that the Applicant did not attempt to send the Application via email or make the Application over the telephone, claiming difficulties attaching documents over the phone. I note, for completeness that the Applicant concedes he made mistakes in the course of making his application to the Commission.

• [26] There is nothing exceptional in the circumstances outlined above. The Applicant was aware on his own evidence of his technological difficulties and the internet outages he sometimes faced. He was aware of the time within which he had to make his application. I am not satisfied that the circumstances can be considered exceptional. To the contrary, they are circumstances which are regrettably often encountered. Neither this factor alone, nor in combination with the Applicant's other arguments - at their highest - provide a basis upon which I could conclude that exceptional circumstances exist such that an extension of time should be granted.

• [27] I have considered the Applicant's personal circumstances as provided in the materials and in oral evidence at the hearing. Whilst I have sympathy for an Applicant suffering shock from the termination of his employment, I note that in this case the Applicant was informed of the COVID-19 vaccination requirements from October 2021 and was on notice from at least 30 November 2021 that "Grampians Health may consider the possible termination of your employment."[3]

• [28] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.[4]

• [29] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed.

10:00am Friday 18 February 2022 via Microsoft Teams

[1]Applicant's email of 9 February 2022 to the Commission.

[2] Ceres Agricultural Company Pty Ltd t/a Ceres Agricultural Company v Joshua Regan [2016] FWCFB 371, [15].

[3] Document 2, Respondent's outline of Evidence, Letter from Grampians Health to Stephen O'Dea, 30 November 2021.

[4] Lidia Li v Slim Form Australia Pty Ltd [2021] FWC 619, [20].

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