Adam James Bachiller v UON Pty Ltd
[2022] FWC 1243
•26 MAY 2022
| [2022] FWC 1243 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam James Bachiller
v
UON Pty Ltd
(U2022/2674)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 26 MAY 2022 |
Application for an unfair dismissal remedy – extension of time
The issue
Mr Adam Bachiller (the Applicant) applied for an unfair dismissal remedy on 2 March 2022, having been dismissed from UON Pty Ltd (the Respondent) on 28 January 2022. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
The Respondent, a company that conducts its business within the mining and resources sector, submitted that it was subject to the direction of the Western Australian Chief Health Officer (CHO). The CHO had issued directions that required fly in fly out workers to be partially vaccinated against COVID-19 by 1 December 2021 and further vaccinated by 1 January 2022, to access mine sites (for Group 1 employees).[1]
According to the Respondent, the Western Australian government issued further directions on 24 December 2021,[2] which indicated that the need for booster shots would apply to all persons covered by the directions.
Whilst the Applicant was initially considered by the Respondent to fall within the group of employees classified as ‘Group 1’, whose first vaccination dose was due by the abovementioned dates, having informed the Respondent of his vaccination hesitancy, the Applicant was reclassified as Group 2. This meant that the due dates for the Applicant to provide evidence of vaccination were pushed out to the 31 December 2021 and 31 January 2022.
Ultimately, the Applicant was dismissed because of his failure to provide proof of his COVID-19 vaccination – the first dose having been due by 31 December 2021 and the second by 31 January 2022. The Applicant submits that he did not become aware of his dismissal until after 28 January 2022, hence why his unfair dismissal application was made late. He therefore attributes the twelve-day delay in filing his application, on the Respondent not taking action to ensure he received timely notification of his dismissal.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other matters are not relevant for the purpose of the application.
For the application to now proceed, it is necessary for the Applicant to show that his application was made in time or to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a)the reason for the delay; and
(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
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.[3]
In short, the issues before me are:
a) when did the Applicant’s dismissal take effect;
b) whether the unfair dismissal application was made within 21 days after the dismissal took effect; and
c) if it was not, whether:
i.there are exceptional circumstances that warrant an extension of time being granted; and
ii.it is fair and equitable to grant that extension.
Having considered the views of the parties, the materials submitted and the Commission’s case management file, I determined that a hearing was the appropriate course in light of s 577 of the Act. I further note that the Applicant requested a hearing.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.
The Applicant commenced employment with the Respondent on 14 June 2021 as a Warranty Coordinator. The Applicant’s employment contract set out that where he was required by the Respondent to work at a remote site, he would be paid an additional $200.00 per day. The employment contract also provided:
This position is currently located at the site/project identified in the Employment Particulars. We may require you to travel to, or work at, other locations from time to time in the course of fulfilling your duties and responsibilities, including intrastate, interstate and overseas…
The Respondent commenced its communication about COVID-19 vaccination via various company memoranda (memo). The first was distributed on 1 October 2021. That memo encouraged the Respondent’s employees to be vaccinated against COVID-19, in response to the COVID-19 pandemic.
On 6 October 2021, the Respondent issued a further memo notifying its employees that the Western Australian government had announced that it would be mandatory for everyone attending a Western Australian mine or exploration site, or remote operations site, to be vaccinated against COVID-19.
By memo dated 19 October 2021, the Respondent outlined for its employees the requirements of its clients, such has BHP, Rio Tinto, FMG, and Atlas, regarding COVID-19 vaccination. In addition, the memo stipulated that the Respondent would be complying with the directions of the Western Australian government. The memo outlined that the mandate was not compulsory for workshop and office-based personnel. The Applicant was not office-based and did not appear to form part of the workshop personnel.
A further memo was issued by the Respondent on 27 October 2021, outlining the Western Australian government’s mandatory COVID-19 vaccination requirements. The memo highlighted, ‘[T]hese Public Health Directions have legal force and must be complied with unless a medical exemption from the Australian Immunisation Register or via the Chief Health Officer has been obtained and provided to UON’.
By email dated 16 December 2021, Ms Susan Re, Head of Safety, People and Culture, provided the Applicant with a link to the Public Health Act 2016 (WA) Resources Industry Worker (Restrictions on Access) Directions (No 2) (the Directions), at the request of the Applicant.
On 17 December 2021, the Applicant acknowledged receipt of Ms Re’s email dated 16 December 2021, that had attached the Directions.
On 17 December 2021, the Respondent issued the Applicant a letter setting out the Directions. In the letter, the Respondent confirmed that its employees had been identified as falling under Group 1 and Group 2 categories in the Directions. The correspondence noted that the Applicant fell under the Group 2 category, and as such he was required to provide proof of vaccination by 31 December 2021.
The letter of 17 December 2021, emphasised that from 1 January 2022, the Applicant would be prohibited from attending the workplace until such time as he provided evidence of his COVID-19 vaccination or a medical exemption. The letter also detailed that the Applicant may be eligible to take annual leave or long service leave.
Mr Adam Wilson, Operations Manager of the Respondent, outlined in his statutory declaration that he had sent a text message to the Applicant on 17 January 2022 asking if he had spoken to Ms Re, in addition to sending an email on 9 January 2022 regarding the Applicant’s vaccination status, and on 1 February 2022, regarding the Applicant’s VPN account.
On 18 January 2022, the Applicant was sent email confirmation that he had been placed on leave without pay for the period of 7 January 2022 until 18 January 2022. The email to the Applicant noted, ‘[U]nable to reach employee. LWOP booked for the time being’.
Ms Re also emailed the Applicant on 18 January 2022, requesting missing timesheets from 7 January 2022 – noting that Payroll had emailed him the day prior but had not heard from him. Ms Re explained that she had left a voicemail and had sent a text message regarding the missing timesheets. The email also set out that the Applicant had 48 hours of annual leave owing but he needed to apply for this if he wanted it approved.
Ms Re stated that a text was also sent by the Applicant’s direct supervisor on 18 January 2022, to the Applicant’s work phone requesting that the Applicant at least contact Ms Re given his radio silence since Christmas.[4]
Ms Re gave evidence that an email was sent from Mr Wilson to the Applicant’s work email address on 20 January 2022, in addition to a text message to his work phone on that same day requesting an update of the Applicant’s situation and plan to return to work. No response was received from the Applicant to Mr Wilson’s contact at that point.[5]
However, on 20 January 2022, the Applicant was said to have contacted Ms Re and indicated that he had completed medical tests with no negative outcome but had not made up his mind regarding vaccination.
The Respondent submits that the Applicant used his work mobile phone for data on 21 January 2022, for a period of 30:05:06 minutes.[6]
On 28 January 2022, Ms Susan Re emailed the Applicant using the ‘hotmail’ email address on the Respondent’s Human Resources (HR) system. The email set out that Ms Re and ‘Adam’ had called the Applicant that morning but could not get hold of him, therefore a message had been left. Attached to the email dated 28 January 2022, was a letter of termination, the termination date was said to have been effective from 28 January 2022. Ms Re also caused a termination letter to be sent to the last known postal address of the Applicant, via registered post.
Ms Re’s evidence was that the Respondent had sent the termination letter to the last known email address for the Applicant, held by the Respondent’s HR department. According to Ms Re, the Applicant had updated his postal address within the company payroll system of his own accord and had not provided updated details to the HR department as per the Respondent’s Privacy Policy. Ms Re provided evidence of a delivery receipt for the email sent on 28 January 2022.
Ms Re confirmed that a call was made to the Applicant’s work phone (company phone) on 28 January 2022, but because the phone was switched off a voicemail was left asking for the Applicant to call the Respondent or the Operations Manager as soon as possible.[7] Ms Re noted that neither the Respondent nor the Operations Manager heard back from the Applicant, therefore a decision was made to email out a copy of the termination letter to the Applicant’s private email and a letter was sent by registered post.[8] On 3 March 2022, the Respondent received notification to alert it that the registered letter was sent to an incorrect address.[9]
Ms Re stated that due to the nature of the Applicant’s role and his access to sensitive intellectual property and patented design details, the Applicant’s access to the company IT system was removed on 28 January 2022, hence why the termination notification was sent to the Applicant’s ‘hotmail’ email address and postal address.
The Applicant notes that whilst the registered letter was sent to his old residential address, the Respondent knew his updated residential address, as it was evinced on his payslip from August 2021 (which showed the new residential address).[10]
Ms Re observed that the company mobile phone statement shows that the Applicant used ‘Mobile/WAP’ for an internet session on 29 January 2022 at 6:07am for a period of 29:13:08 minutes, at which time the voicemail had already been left by Ms Re and the Operations Manager, Mr Wilson.
On 17 February 2022, the Applicant emailed Ms Susan Re asking for an attached form regarding long service leave entitlements to be completed by the HR department. In the email of 17 February 2022, the Applicant asked for a copy of the government mandate direction and independent risk assessments the Respondent had premised its decision on. The Applicant expressed that it was both disappointing and upsetting to see the termination notification and he disagreed with the points made in it. The Applicant thereafter proffered working from home as a viable solution and asked whether the job would be filled or whether the job would be available if circumstances changed.
In response to the Applicant’s assertion that his ‘hotmail’ email account was infrequently used, Ms Re gave evidence that the Applicant’s company email address/account had received or sent emails to the ‘hotmail’ account on an ongoing basis between June and December 2021.[11] In support of her evidence, Ms Re referred the Commission to correspondence that the Applicant had sent to his hotmail account, including the email correspondence she had sent to him on 16 December 2021 attaching the Directions. At hearing, the Applicant conceded that his ‘hotmail’ account remained an active email account, which he used – noting that he had utilised the account for purposes of his unfair dismissal application.
The date when the dismissal took effect
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 28 January 2022. For his part, the Applicant stated that he had only become aware of having been dismissed between 28 January 2022 and 17 February 2022, when he accessed his ‘hotmail’ account to read the letter of termination. The Applicant was unable to recall the precise date he became aware of his dismissal.
In Ayub v NSW Trains (Ayub),[12] the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[13] The Full Bench explained at paragraph [42] of Ayub:
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
The issue before me now is whether the Applicant had a reasonable opportunity to find out he had been dismissed on 28 January 2022. For the reasons that follow, I am satisfied that he did.
The Applicant has placed upon the Respondent a positive obligation to have updated its HR system to reflect the email address that the Applicant purports was his current personal email address/account. Ms Re gave evidence that the obligation to update contact details in the Respondent’s HR system, sat with the employee.
In any event, in respect of the Applicant’s email address, there was no evidence before the Commission to contradict the Respondent’s account that the Applicant himself, had been forwarding emails to the very ‘hotmail’ account, which the Respondent utilised to send the letter of termination. In fact, the Applicant conceded that the ‘hotmail’ account remained in use at all material times and he had sent or forwarded emails from his work email account to that ‘hotmail’ account, as late as December 2021.
The Respondent had commenced communication with the Applicant in October 2021, highlighting the obligations upon employees to provide proof of first dose COVID-19 vaccination. Throughout October, November, and December 2021 that communication continued. The Respondent responded to the Applicant’s concerns about vaccination by moving him into the category of a Group 2 employee, hence pushing out the date for COVID-19 vaccination, notwithstanding its evidence that 40% of the Applicant’s work time was spent on remote mining sites. Furthermore, when the Respondent was asked to provide a copy of the Directions, Ms Re responded on 16 December 2021, providing an internet link. The Applicant confirmed his receipt of Ms Re’s correspondence on 17 December 2021.
Over the course of mid-December 2021 to early January 2022, the Respondent made repeated attempts to contact the Applicant. This was evident in the letter emailed to the Applicant on 17 December 2021, Mr Wilson’s attempts to contact the Applicant on 9 January 2022 (via email) and 17 January 2022 (via text message), an email to the Applicant on 18 January 2022 regarding leave without pay, Ms Re’s correspondence, voicemail and text message on 18 January 2022, a text on 18 January 2022 from the Applicant’s supervisor regarding his radio silence, and Mr Wilson’s email and text messages to the Applicant on 20 January 2022.
It is apparent that a discussion was held on 20 January 2022, between the Applicant and Ms Re about options and next steps. The Applicant explained at hearing that Ms Re advised him to email her, which he said he did. At that time, the Applicant noted that he was still making his mind up about vaccination and had explained to Ms Re he was not yet vaccinated and discussed the medical advice he had received. The Applicant said he informed her that he sought an alternate position. Ms Re gave evidence that this request was escalated to the Chief Operating Officer, who declined the request in light of the work the Applicant undertook.
At hearing, the Applicant admitted to having received missed calls on both his work mobile and his personal mobile phone, from Ms Re in the January 2022 period. Ms Re similarly gave evidence of her multiple attempts to contact the Applicant to ascertain his vaccination status and discuss his ongoing employment – telephoning both his personal and work mobile phones.
The Respondent submitted that the Applicant used his work mobile phone for data on 21 January 2022, for a period of 30:05:06 minutes.[14] At hearing, the Applicant conceded that while his work mobile phone had been switched on the battery may have died – hence the missed calls.
On 28 January 2022, Ms Re emailed the Applicant using the ‘hotmail’ email address. The email set out that Ms Re and ‘Adam’ had called the Applicant that morning but could not get hold of him, therefore a message had been left. Attached to the email dated 28 January 2022, was a letter of termination. The termination date was said to have been effective from 28 January 2022. Ms Re also sent the letter of termination to the Applicant’s postal address, via registered post. However, as noted, the Applicant gave evidence that the postal address was incorrect and that the Respondent had access to his correct postal address as could be seen in the payslip referred to in paragraph [31].
Ms Re’s evidence was that the Respondent had sent the termination letter to the last known email address for the Applicant, held by the Respondent’s Human Resources department. Ms Re had received a confirmation delivery receipt for the email sent to the Applicant dated 28 January 2022.
According to Ms Re, the Applicant had updated his postal address within the company payroll system of his own accord but had not provided updated details to the HR department as per the Respondent’s Privacy Policy. Therefore, it appeared that the Respondent had relied upon an old postal address of the Applicant, due to a lack of synergy between its payroll system and HR system. I do not consider that the Applicant can be held to account for this.
However, I do not consider that the Respondent’s reliance on the Applicant’s ‘hotmail’ email address was misplaced. In circumstances where those contact details were incorrect, it was the Applicant’s responsibility to update his contact details. It was not the case that the Applicant was unaware that the continuation of his employment was at risk. On any objective level he was aware this was the case. The Respondent had engaged in a campaign of communicating the requirement regarding the COVID-19 vaccination over a two-month period and had taken the additional steps of texting, telephoning, and emailing the Applicant to try and communicate with him about his ongoing employment.
In such circumstances, I hold the view that the Applicant had a reasonable opportunity to find out that he had been dismissed. A letter was provided to the email address he had provided to the Respondent. It was an email address/account, which the Applicant conceded remained active. This was evident by his use of it through the course of his employment. It is accepted that in a situation where an employee is informed by email that she or he has been dismissed, the employee can usually be regarded as knowing, or having had a reasonable opportunity to know, of the dismissal when the email is received in the inbox of the employee’s usual email address.[15] I am satisfied that in all the circumstances, the ‘hotmail’ email address constituted the ‘usual’ email address.
Having found that the Applicant had been provided with a reasonable opportunity to find out he had been dismissed on 28 January 2022, it follows that the date when the dismissal took effect was that same date. Therefore, the Applicant’s unfair dismissal application was made twelve days late.
Extension of time
Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[16] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.
In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[17] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
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.[18]
In the directions issued to the parties on 4 May 2022, both were referred to s 394(3) of the Act and the meaning of ‘exceptional circumstances’.
4.1Reason for the delay
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.[19] 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. 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.[20]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[21] However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[22]
The reason for the delay did not initially appear to be the Applicant’s ignorance about the time limit of 21 days, but rather a lack of knowledge regarding the date of his dismissal. At paragraphs [35] to [50] of this decision, I have addressed the contention of the Applicant’s unawareness of his dismissal. However, it is also timely at this juncture to note that at the hearing the Applicant gave evidence that he ‘did not know that unfair dismissal was a thing’ – hence also why his application was submitted late.
The Applicant purports to having become aware of his dismissal between 28 January 2022 and 17 February 2022, when he accessed his ‘hotmail’ account and read the correspondence from the Respondent dated 28 January 2022 (letter of termination). As recorded, the Applicant was unable to specify the precise date he became aware of his dismissal.
If it were the case that the Applicant became aware of his dismissal on 17 February 2022, noting my finding as to when this dismissal took effect, it nevertheless remains that as of 18 February 2022, the unfair dismissal was due to be filed (made) in accordance with the statutory timeframe set in s 394(2) of the Act. The reasons relied upon by the Applicant for not doing so, in part, speak to an unfamiliarity with the jurisdiction – noting he ‘did not know it was a thing’, and that he had been awaiting a response from Ms Re regarding his request for a long service leave form to be completed and to his other enquiries.
In short, the responses that the Applicant sought from the Respondent (Ms Re), do not provide reason as to preclude the Applicant from having made his application within the requisite statutory period. Further, it is accepted by this Commission that ignorance of the unfair dismissal jurisdiction and the requisite statutory timeframe do not, in the absence of other exceptional circumstances, lead to a finding of exceptional circumstances.[23] In Nulty, the Full Bench expressed:
[I]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought to be expected to seek out information on any remedy they have in a timely fashion such that delay on account of ignorance of the statutory limit is not, of itself, an exceptional circumstance.[24]
While sympathetic to the Applicant’s circumstances and acknowledging that he is aggrieved by his dismissal, I am not satisfied that the Applicant exhibited a sense of urgency regarding the making of his unfair dismissal application and consider that he has not provided a credible explanation for the delay. These matters therefore weigh against a finding of exceptional circumstances.[25]
4.2Whether the person first became aware of the dismissal after it had taken effect
As has been traversed, at all material times from the time the Applicant was notified of his dismissal on 28 January 2022 and it taking effect on that same day, the Applicant was aware of his dismissal up until his unfair dismissal application was made. I therefore consider this to be a neutral factor.
4.3Action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[26] I have considered all submissions and the evidence in this respect. I consider there is insufficient evidence to find that the Applicant challenged his dismissal. While the Applicant queried on 20 January 2022 the opportunity of an alternative position with the Respondent, and did so again on 17 February 2022, after he had been dismissed, there is no evidence to support a finding that the Applicant challenged or disputed his dismissal. This weighs against a finding of exceptional circumstances.
4.4Prejudice to the employer
I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances.
4.5Merits of the application
In Kornicki v Telstra-Network Technology Group,[27] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[28]
The parties were in disagreement as to the period the Applicant was required to work on the mine sites of the Respondent’s clients, with the Respondent providing a figure of 40% of work time and the Applicant providing 10% of work time. This discrepancy arose in the context of the Applicant’s argument that he may have been able to fulfil the duties of his role whilst not being sent to site, or alternatively having worked in a different role.
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[29] The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.
4.6Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[30] where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[31]
Based on the materials filed and the circumstances, I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed. As such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension. While the Applicant explained the reasons for the delay in making his unfair dismissal application, when the totality of the evidence is considered, I am unpersuaded that the Applicant’s circumstances are ‘exceptional’.
There of course may be circumstances in which mere receipt of an email attaching a letter of termination may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons.[32] However, that was not the evidence which was put before this Commission. What was traversed, was that the Respondent relied upon the personal email address which the Applicant had provided and was utilising, and sent the letter of termination to that same email address. Furthermore, the Respondent had sought to call the Applicant on 28 January 2022, the same day the email and letter were sent.
The Applicant purports he had not checked his ‘hotmail’ email account during the January 2022 period, notwithstanding repeated communication by the Respondent in December 2021 and January 2022, to his work email account, company mobile phone and personal mobile phone, regarding his employment status and the requirement to show evidence of COVID-19 vaccination. This was in circumstances where the Respondent was able to adduce direct evidence showing data use on the Applicant’s work mobile phone on 21 January 2022 and 29 January 2022. There was no suggestion in the evidential cases advanced that someone else had control of the Applicant’s work mobile phone during this period. Furthermore, the Applicant conceded, appropriately in my view, as to having seen missed calls from Ms Re on both his personal mobile and company mobile phone. I believe Ms Re when she states that the Respondent explored all options available to engage with the Applicant regarding informing him of the decision to dismiss him.
It follows that the circumstances are such that I do not consider it fair and equitable to grant the extension.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[33] will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr A. Bachiller on behalf of himself;
Ms S. Re on behalf of the Respondent.
Hearing details:
Monday 23 May 2022 (telephone hearing)
[1] Resources Industry Worker (Restrictions on Access) Directions (WA).
[2] Booster Vaccination (Restrictions on Access) Directions (WA).
[3] Fair Work Act 2009 (Cth) s 394(3) (The Act).
[4] Statutory Declaration of Ms Susan Marie Re dated 20 May 2022, [3] (Re Declaration); Statutory Declaration of Mr Geoff Smith dated 20 May 2022 [3] (Smith Declaration).
[5] Re Declaration (n 2) [3].
[6] Ibid [4].
[7] Ibid [7].
[8] Ibid.
[9] Ibid [6].
[10] Email from Applicant to Chambers of Vice President Catanzariti dated 8 April 2022 with attached payslip undated.
[11] Re Declaration (n 2) [22].
[12] [2016] FWCFB 5500 (Ayub).
[13] Ibid [48].
[14] Re Declaration (n 2) [4].
[15] Ayub (n 10) [50].
[16] (2011) 203 IR 1 (Nulty).
[17] [2018] FWCFB 901 (Stogiannidis).
[18] Ibid [38].
[19] Ibid [17].
[20] Ibid [39].
[21] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109, [40].
[22] Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, [12].
[23] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [14]; Nulty (n 14) [14].
[24] Nulty (n 14) [14].
[25] Stogiannidis (n 15).
[26] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[27] Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[28] Ibid.
[29] Kyvelos v Champion Socks Pty Ltd, Print T2421, [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [38].
[30] [2015] FWC 8885.
[31] Ibid [29].
[32] Ayub (n 10) [50].
[33] PR741821.
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