Adrianne Allan Herrod v BHP Nickel West Pty Ltd
[2022] FWC 617
| [2022] FWC 617 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adrianne Allan Herrod
v
BHP Nickel West Pty Ltd
(U2022/159)
| COMMISSIONER WILLIAMS | PERTH, 21 MARCH 2022 |
Application for an unfair dismissal remedy.
Mr Adrianne Herrod (Mr Herrod or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is BHP Nickel West Pty Ltd (BHP or the Respondent).
The application states Mr Herrod was notified of his dismissal on 9 December 2021 and his dismissal took effect the same day. His application was made on 31 December 2021.
The application has been made more than 21 days after the alleged dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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:
(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.”
Consequently, on 21 January 2022 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.
The Commission’s correspondence to the Applicant explained that if he relies on a medical condition as the reason for the delay, he should supply a medical certificate or report which specifically explains why the medical condition prevented him from making the application within time.
The Applicant provided a written response on 25 January 2022.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
The Applicant explains the primary cause for his late application was that his home computer which has all the documents, research, letters and communication related to his internal dispute with BHP suffered a fatal error. This led to the inability to access the documents he wished to forward on to the Commission.
This was not the only issue that led to making the application late. His computer is connected to an external hard drive for doing regular backups and in early October 2021 he noticed the external hard drive was full and therefore unable to make backups.
He also submits that the immense pressure researching how to save his job and how to find all information necessary to be able to make a free decision on getting vaccinated proved a massive distraction and he forgot about replacing the external hard drive.
He submits the immense stresses got the better of him several times with multiple sick days taken due to the stress levels. He submits that BHP’s representative can testify to that, as can his GP counsellor and the senior production engineer who sent him home mid-shift due to the emotional state on one occasion.
Moving forward, he says that once he had been dismissed, on 9 December 2021, he took some desperately needed time to gather himself, destress and ultimately unwind before picking up the pieces and trying to figure out where to from there. This included counselling sessions and GP visits as the stress levels were insurmountable.
He explains that it was on 23 December 2021 that he made the decision to take action against BHP for unfair dismissal. Upon turning on his computer he then discovered the fatal computer failure. Over the course of the next week, he chased things up and tried various different things to resolve his computer problems.
I note firstly that part of the explanation provided by the Applicant refers to circumstances or events that existed or occurred before he was dismissed on 9 December 2021.
Separately, the Applicant did not provide a medical certificate or report which specifically explains why any medical condition he suffered after 9 December 2021 prevented him from making the application within time.
Unfortunately, it is commonplace that after a dismissal an employee will be distressed to some extent, which is not an exceptional circumstance.
Having computer problems is not at all uncommon and consequently is not an exceptional circumstance.
It is also the case that rule 9 of the Fair Work Commission Rules 2013 allows a person wanting to make an unfair dismissal application to do so by telephone as an alternative to lodging the application on the approved form.
Not having decided to make the application until 23 December 2021 may well have caused difficulties for the Applicant however that personal choice is not an acceptable reason for making a late application.
The Applicant has not provided an acceptable explanation for the delay in making this application.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of his dismissal on the day it took effect.
Action taken to dispute dismissal
The Applicant did not take any other action to dispute his dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the Respondent.
The merits of the application
The Respondent is a nickel miner.
The Applicant identifies the reason for the dismissal given by the Respondent was his refusal to comply with directions to get a COVID-19 vaccination and subsequent inability to perform his role and failure to comply with the company’s lawful and reasonable directions.
The Termination of Employment letter dated 9 December 2021 attached to the Respondent’s reply refers to the fact that the Western Australian Government issued the Resources Industry Worker (Restrictions on Access) Directions (the Directions) which apparently applied to both the Applicant and the Respondent.
In summary those Directions provide for a prohibition on workers subject to the Directions attending the workplace who are not vaccinated, and the Respondent is obliged to collect a record of their employees’ COVID-19 vaccination and cannot allow them in the workplace if they are not vaccinated.
The Directions required a resource worker to have received a first dose of a COVID-19 vaccination by 1 December 2021 to be able to attend the workplace.
It is apparent from the parties’ materials filed that the Applicant had not met the requirements of the Directions such that he was able to work on site and as a consequence, after a show cause process, was dismissed from his employment.
The application as filed attaches correspondence backwards and forwards between the Applicant and BHP regarding COVID-19 vaccinations in the prior months.
In his application Mr Herrod submits that the mandate (the Directions) is not a law. It is unconstitutional and as such illegal. The mandate does not mention dismissal of unvaccinated employees. He had six months of entitlements and could have used these but was not allowed to by BHP. He was unable to make an informed consent decision due to strong coercion by BHP. These arguments are expanded on in some detail.
The submissions the Applicant makes regarding the Directions being unlawful, the Respondent’s actions being unlawful and in breach of the Constitution and a number of his other submissions are arguments frequently made by employees who have chosen not to have a COVID-19 vaccination and who have as a consequence unfortunately been dismissed from their employment.
Similar submissions have already been considered on numerous occasions by this Commission and by other Australian courts, in a variety of different circumstances, and have nearly always been rejected.
In this case the Directions, which are a matter of public record, required a resource worker as defined to have their first COVID-19 vaccination by 1 December 2021. The Applicant had been made aware of this in advance. He apparently was not vaccinated by this date and so could not attend the workplace thereafter. As a result, he received the Termination of Employment letter.
Consequently, there is little merit in this application and it is unlikely to succeed.
Fairness as between the person and other persons in a similar position
There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR739483] to that effect will now be issued.
Final written submissions:
Applicant, 25 January 2022.
Respondent, 2 February 2022.
Printed by authority of the Commonwealth Government Printer
<PR739482>
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