Adam James Bachiller v UON Pty Ltd - [2022] FWC 1243

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1243
Decision Date: 26 MAY 2022

CaseChat Overview and Summary

Adam James Bachiller applied for an unfair dismissal remedy against UON Pty Ltd (UON) on 2 March 2022, having been dismissed from UON on 28 January 2022. UON objected to the application on the basis that it was filed outside the 21-day period prescribed by section 394(2) of the Fair Work Act 2009 (Cth). The Applicant submitted that he did not become aware of his dismissal until after 28 January 2022, hence why his unfair dismissal application was made late. He attributed the twelve-day delay in filing his application on UON not taking action to ensure he received timely notification of his dismissal. The issues before the Deputy President were: (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 there were exceptional circumstances that warranted an extension of time being granted and if it was fair and equitable to grant that extension. The Deputy President determined that the Applicant had a reasonable opportunity to find out he had been dismissed on 28 January 2022, and that his unfair dismissal application was made twelve days late. The Deputy President considered the statutory criteria and all the circumstances of the matter and concluded that the Applicant’s circumstances were not exceptional and it was not fair and equitable to grant the extension. The Applicant’s application for an unfair dismissal remedy was dismissed. An Order will be issued with this decision.

Orders