Aishlin Walker v Grill'd Pty Ltd

Case •

[2022] FWC 1370

•

31 MAY 2022
[2022] FWC 1370

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aishlin Walker
v

Grill’d Pty Ltd

(U2021/11939)

COMMISSIONER P RYAN

SYDNEY, 31 MAY 2022

Unfair dismissal application filed out of time – circumstances exceptional – extension of time granted.

Introduction

  1. This decision concerns an application by Ms Aishlin Walker (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) lodged on 20 December 2021 (Application).

  1. In the Application, the Applicant states that her employment with Grill’d Pty Ltd (Respondent) was terminated with effect from 29 November 2021.

  1. Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). By the dates set out in the Application, the Application was filed within the prescribed period.

  1. However, the Respondent disputes the date of termination in the Application. The Respondent submits the date the dismissal took effect was 23 November 2021. If the Respondent is correct, the period of 21 days ended at midnight on 14 December 2021.

  1. The matter was heard together with the unfair dismissal application made by Ms Celeste Walker[1], the Applicant’s sister, as a determinative conference via Microsoft Teams on 28 April 2022, with the evidence in one proceeding being evidence in the other.

  1. In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the date of dismissal and if required, whether an extension of time should be granted. The materials filed by the parties were consolidated by my chambers into a Digital Hearing Book (DHB).

  1. The Applicant represented herself and was supported by her father, Geoff Walker. The Respondent was represented by Mr Damian Bevilacqua, the Respondent’s head of HR services.

  1. For the reasons that follow, I grant an extension of time under s.394(3).

When did the dismissal take effect?

  1. The parties are in dispute about when the dismissal took effect. The Applicant contends the dismissal took effect on 29 November 2021, while the Respondent contends the dismissal took effect on 23 November 2021.

  1. It is not in dispute that on 23 November 2021, the Respondent sent a letter of termination to the Applicant’s usual email address and that was received by the Applicant’s email account at 1.50pm.[2]

  1. The letter of termination states:

“We refer to our letter dated 16th November 2021. The letter outlined that Grill’d employees will need to be vaccinated in order to return to work, in line with the NSW Government’s Public Health Order issued on the 11th October 2021. This followed correspondence via phone and email relating to the Health Order and the requirements that they entailed.

To date, you have been unable to fulfil the inherent requirements and duties of your role as Team Member since the 12th of October 2021 and have been unable or unwilling to provide evidence of your vaccination status.

On the 16th of November we issued you with a management directive to be vaccinated in line with the below timeframes –

i.     19th November 2021: 1st vaccination dose to be booked. Evidence to be provided to your Area Manager.

ii.26th November 2021: 1st vaccination dose received. Evidence to be provided to your Area Manager.

iii.17th December 2021: 2nd vaccination dose received. Evidence to be provided to your Area Manager.

You have failed to comply with that directive. Grill’d considers that your failure to produce evidence that you have received or made a booking to receive a vaccination as a breach of the management directive provided to you. As a result, your employment with Grill’d will be terminated effective immediately, unless you can provide evidence of point (i) above or that you are fully vaccinated by Wednesday 24th November, 5pm.

Based on your length of service, your notice period is 2 weeks. You will not be required to work your notice period and will receive a payment in lieu of notice. You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment.

We wish you the best with your future endeavours.”[3]

(Emphasis added)

  1. In relation to the effective date of termination date, the letter of termination is poorly drafted. It initially states that the Applicant’s employment will be terminated “effective immediately”, but then provides a further 24-hour period for the Applicant to provide evidence that she has complied with the relevant COVID-19 vaccination requirement.

  1. While it is not in dispute that the Applicant did not provide any evidence of compliance with the relevant COVID-19 vaccination requirement by 5:00pm on 24 November 2021, upon receipt of the letter of termination on 23 November 2021, the following correspondence was exchanged between the Applicant and the Respondent:

24 November: Applicant to Respondent – seeking reconsideration of termination of employment and answers to various questions;[4]

26 November: Respondent to Applicant – Respondent will not reconsider termination of employment and considers the matter closed;[5]

29 November: Applicant to Respondent – Further request for responses to questions;[6]

29 November: Respondent to Applicant – Provision of extract of enterprise agreement and confirmation that Respondent will not respond further;[7]

1 December: Applicant to Respondent – Repeats request for answers to various questions;[8] and

2 December: Respondent to Applicant – Replies with answers to questions and states the Applicant’s date of termination is 29 November 2021.[9]

  1. The sole basis for the Applicant’s contention that the effective date of termination of her employment was 29 November 2021 is the email from Mr Bevilacqua dated 2 December 2021, which included the following statements:

“Please note that Grill’d will not enter into any further discussion or communication with you on this matter.

We note your termination date is the 29th November 2021 with your final payment to be made in the next available payrun being next Wednesday 8th December 2021”

  1. In my view, the effect of the Respondent’s correspondence dated 23 November 2021 was that the Applicant’s employment would be terminated at 5:00pm on 24 November 2021 unless she provided evidence of compliance with the relevant COVID-19 vaccination requirement before then.

  1. Expressed in that way, the notice of termination was conditional. When the Applicant failed to provide evidence of compliance with the COVID-19 vaccination requirement by 5:00pm on 24 November 2021, the condition was fulfilled, and the notice of termination was effective.[10]

  1. Where an employee is given notice of the termination of their employment, but the termination is subject to a condition, the dismissal takes effect on the date specified as the conditional date of termination.[11]

  1. Accordingly, I find the date the dismissal took effect was 24 November 2021.

  1. This means the Application was filed 26 days after the date the dismissal took effect, and 5 days outside the 21 day period.

Exceptional Circumstances

  1. The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[12] 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.[13]

  1. The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

  1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

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

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

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

(e)   the merits of the application; and

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

  1. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

  1. The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[14]

  1. I now consider these matters in the context of the application.

Reason for the delay

  1. The FW 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. 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, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered.[15]

  1. In summary, the Applicant gave evidence and made submissions that she relied on the correspondence from Mr Bevilacqua which stated the date of termination of her employment as 29 November 2021 and that the Application was filed within 21 days of that date. The Applicant further submitted that it was incumbent upon the Respondent to provide accurate dates and that the Application should not be dismissed as a result of her reliance on an error by the Respondent.[16]

  1. In summary, the Respondent accepts that the correspondence dated 2 December 2021 incorrectly stated the date of termination was 29 November 2021.[17] However, the Respondent submits that is not an acceptable reason given the Applicant was provided with clear notice of termination on 23 November 2021.[18] The Respondent further submitted that the Applicant provided no explanation for the delay in filing the Application after 2 December 2021, other than bare assertion that she found the process stressful.[19]

  1. I accept the Applicant’s evidence and submissions that she relied on the Respondent’s correspondence of 2 December 2021 which noted the date of termination of her employment as 29 November 2021. The Application was filed within 21 days of that date.

  1. Furthermore, and as was the case in Symon Obradovic v South Coast Curtains and Blinds[20], I am of the view that had the Applicant not been advised that the date of termination of her employment was 29 November 2021, she would have taken steps to file the Application within the prescribed period.

  1. Accordingly, I am of the view that the Applicant has provided an acceptable explanation for the delay.

  1. I am therefore satisfied this factor weighs in favour of a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

  1. I find the Applicant was notified of the date the dismissal took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance weighs against a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

  1. It is clear in the Applicant’s correspondence dated 24 November 2021 that she disputed the termination of her employment. Accordingly, this circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

  1. The Respondent submitted that it would suffer prejudice if an extension of time were granted. Specifically, the Respondent submits that if an extension of time were granted, it would suffer prejudice from the time and costs associated with defending the Application.[21]

  1. In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I consider this to be a neutral consideration.

Merits of the application

  1. The FW Act requires me to take into account the merits of the application in considering whether to grant a further period for the application to be made under s.394(3).

  1. The letter of termination states the Applicant’s employment was terminated for failing to provide evidence that she had complied with the relevant COVID-19 vaccination requirement.[22] The relevant COVID-19 vaccination requirement was set out in the Public Health (COVID-19 General) Order 2021, an order issued pursuant to s.7 of the Public Health Act 2010 (NSW).

  1. It is not in dispute that the Applicant did not provide any evidence of compliance with the relevant COVID-19 vaccination requirement.

  1. However, it is apparent that the Applicant had sent correspondence to the Respondent on or about 18 November 2021 in response to a final warning from the Respondent to provide evidence of her compliance with the COVID-19 vaccination requirement. Neither party filed a copy of that correspondence as part of their materials.

  1. In these circumstances, I am unable to make a firm assessment of the merits. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

  1. The Respondent’s submissions on this point focused other matters before the Commission involving non-compliance with public health orders.

  1. As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[23]

  1. In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”[24] and “who have filed applications in time”.[25]

  1. I am not aware of any other applicants employed by Respondent who are affected by the same issue, and who have filed applications in time. I therefore consider this to be a neutral consideration.

Are there exceptional circumstances?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

  1. I have found that the matters set out at s.394(3)(a) and (c) weigh in favour of a conclusion that there are exceptional circumstances, while the matters set out at s.394(3)(d), (e) and (f) are neutral, and s.394(3)(b) weighs against a conclusion that there are exceptional circumstances.

  1. The matters which weigh in favour of a finding that there are exceptional circumstances outweigh those that weigh against such a conclusion.

  1. Having regard to matters set out in s.394(3), I am satisfied that there are exceptional circumstances.

Should the period for the Application to be made be extended?

  1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the Application to be made.

  1. While I accept the Respondent made a genuine error in its correspondence of 2 December 2021, the Applicant should not have her application for an unfair dismissal remedy extinguished as a result of her reliance on that error. Such an outcome would not be fair and just.[26]

  1. Accordingly, and having regard to the exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a “fair go all round” is accorded, I am satisfied that it is appropriate to extend the period for the application to be made to 20 December 2021.

Conclusion

  1. The period for the Application to be made is extended to 20 December 2021.

  1. An Order to that effect will be issued with this Decision.


COMMISSIONER

Hearing details:

2022.
Sydney (via Microsoft Teams video-link):
28 April.


[1] Celeste Walker v Grill’d Pty Ltd (U2021/11936).

[2] Exhibit R1 (DHB at p.98-99); Form F2 Attachment (DHB at p.36 and 38)

[3] Ibid.

[4] Exhibit R1 (DHB at p.102-103).

[5] Exhibit R1 (DHB at p.102).

[6] Exhibit R1 (DHB at p.106-107).

[7] Exhibit R1 (DHB at p.106).

[8] Exhibit R1 (DHB at p.110-111).

[9] Ibid.

[10] Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346 at [92]-[94].

[11] Ibid.

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

[13] Ibid.

[14] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

[16] Form F2 Application (DHB p.36); Exhibit A2 at [24]-[25], [31]-[41]; Form F3 Employer Response (DHB p.47).

[17] Form F3 Employer Response (DHB p.47); Respondent’s Submissions at [8], [16].

[18] Respondent’s Submissions at [18]-[19], [25]-[29].

[19] Respondent’s Submissions at [30].

[20] [2019] FWC 6706 at [45].

[21] DHB at p.170 at [40]-[41].

[22] Exhibit R1 (DHB at p.99).

[23] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].

[24] Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090 at [19].

[25] Ivan Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 at [38].

[26] See s.577 of the FW Act.

Printed by authority of the Commonwealth Government Printer

<PR742186>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0