Alberto Giberti v The Commonwealth of Australia, as represented by the Australian Federal Police

[2022] FWC 2375

[2022] FWC 2375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alberto Giberti
v

The Commonwealth of Australia, as represented by the Australian Federal Police

(U2022/6978)

COMMISSIONER MCKINNON SYDNEY, 8 SEPTEMBER 2022

Application for an unfair dismissal remedy

1. Mr Alberto Giberti worked for the Australian Federal Police (AFP) for almost 15 years. He was dismissed on 31 March 2022 for failing to comply with the AFP Commissioner’s Order on COVID-19 Vaccination (CO10) and a subsequent direction to provide the AFP with proof of vaccination by 14 December 2021.

1. On 7 July 2022, Mr Giberti applied for an unfair dismissal remedy. Applications of this kind must be made within 21 days after the dismissal took effect or if there are exceptional circumstances, such further period as the Commission allows.[1] The application made by Mr Giberti is 11 weeks late.

1. The question is whether additional time should be allowed to Mr Giberti to make his application to the Commission. I have decided not to allow additional time and to dismiss the application. These are my reasons.

Extension of time

1. Under s.394(3) of the Fair Work Act 2009 (Cth) (the Act), the Commission can allow more than 21 days for a person to make an unfair dismissal application if satisfied that there are exceptional circumstances, taking into account:

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 meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[2]:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[3]

Chronology

1. On 29 October 2021, the AFP Commissioner’s Order on COVID-19 Vaccination (CO10) was issued. Mr Giberti was notified of CO10 at the time that it was issued although he did not see it until 31 October 2021.

1. Mr Giberti did not agree with CO10 and did not comply with the order. This meant he was not permitted to attend work. As he had not applied for leave to cover his absence, Mr Giberti was placed on Miscellaneous leave without pay (unauthorised) in November 2021. At around the same time, Mr Giberti asked the Australia Federal Police Association (AFPA) for assistance in dealing with his concerns about CO10. The AFPA agreed to assist Mr Giberti and on 23 November 2021, advised Mr Giberti that termination of employment was a likely consequence of his decision not to comply with CO10. The AFPA also asked Mr Giberti to let it know if he received a show cause notice from the AFP about his failure to become vaccinated or provide evidence of vaccination.

1. On 30 November 2021, Mr Giberti made an internal complaint to the AFP about CO10 and its effect on his employment. The complaint was determined as a “non-complaint” on 7 December 2021 and the matter was referred to AFP Industrial Relations.

1. On 7 December 2021, Mr Giberti was formally directed by the AFP to provide proof of vaccination status by no later than 14 December 2022. He was also informed that failure to comply with CO10 and the direction may result in the termination of his employment.

1. On 8 December 2021, Mr Giberti made a complaint to the Commonwealth Ombudsman about CO10 and its effect on his employment.

1. On 20 December 2021 (supplemented on 5 January 2022), Mr Giberti made an internal privacy complaint in relation to CO10 and the effect it was having on his employment. On 20 January 2022, the AFP advised Mr Giberti that its actions were consistent with privacy legislation and principles. Mr Giberti asked for the matter to be considered further and provided additional information. This was done and on 10 February 2022, the AFP confirmed its view that it had complied with relevant privacy legislation in relation to CO10.

1. On 28 January 2022, the AFP gave notice to Mr Giberti of its intention to terminate his employment. Mr Giberti contacted the AFPA for help to prepare his response. The AFPA drafted a response for Mr Giberti who then finalised and submitted it to the AFP.

1. On 29 March 2022, the Commonwealth Ombudsman notified Mr Giberti that his complaint about CO10 would not be investigated.

1. On 31 March 2022, Mr Giberti was dismissed from his employment with the AFP. He did not tell the AFPA about his dismissal straight away. At around the same time, he found another casual job and started working.

1. On 30 and 31 March 2022, Mr Giberti wrote to the Commonwealth Ombudsman asking for his complaint to be reopened and reinvestigated because it had misunderstood his complaint.

1. On 6 April 2022, the Ombudsman affirmed its decision not to investigate the complaint.

1. On 8 May 2022, Mr Giberti sent an email to the AFPA asking if there was “an appetite to support a number of appointees through a fair work challenge regarding the covid 19 injection mandates”. After a follow up email, the AFPA responded on 12 May 2022, advising that its Executive would be discussing the matter on 19 May 2022.

1. Mr Giberti became frustrated about having to wait for a decision of the Executive. He followed up again. On 3 June 2022, the AFPA advised Mr Giberti that it was still seeking advice and finalising its position. Mr Giberti was assured that as he had been a member of the AFPA when the issue arose, the AFPA would represent him and keep him updated.

1. On 7 June 2022, Mr Giberti became aware from a friend of his that there was a 21‑day filing limit for unfair dismissal applications. He wrote to the AFPA as follows:

“Hi Ashlea

Hope you are well.
I would like to lodge a claim with fair work regarding my termination however concerned about the time frame deadline for lodgement given i was terminated on 31/03/2022. Would you have any advice and can you assist with lodgement noting no decision yet made (as per Giles advise) I am concerned I may miss the boat if one is not lodged in time.

Regards
Alberto”

1. On 16 June 2022, the AFPA responded to Mr Giberti. It advised that his claim appeared to have low prospects of success. The AFPA noted that Mr Giberti had not previously asked the AFPA to make an unfair dismissal application on his behalf and that it was first told about the dismissal on 18 May 2022, four weeks after the expiry of the 21‑day filing period.

1. Mr Giberti did not agree with the AFPA’s assessment of his prospects of success in an unfair dismissal claim. On 17 June 2022 he responded, challenging the assertion that he had not given instructions about making a claim and stating that this was the first time he had become aware of a fair work deadline (although he had been given this information by a friend 10 days earlier). Mr Giberti said he had spoken with the AFPA about action in relation to the termination of his employment, including unfair dismissal, on 3 February 2022 and that AFPA had advised that it would “continue to represent” him in the event of termination if needed.

1. On 27 June 2022, the AFPA confirmed its view that Mr Giberti had not previously given it instructions to file an unfair dismissal claim. The AFPA offered to assist in submitting and lodging an application for an extension of time and to meet to discuss the matter further if he wished.

1. On 30 June 2022, Mr Giberti wrote to the AFPA, challenging the contents of the AFPA’s correspondence and its assessment of the merits of his case. Included in his email were these words:

“I instruct AFPA to take this matter to court.”

1. On 4 July 2022, the AFPA sought clarification from Mr Giberti about his instructions, and whether he was asking the AFPA to submit an application for unfair dismissal in the Fair Work Commission and to act as his representative in that application. I note that the AFPA did not act on behalf Mr Giberti in the proceedings.

1. On 5 July 2022, Mr Giberti confirmed his instructions to the AFPA to represent him at “fair work”, and “if that fails then instruct representation to progress commonwealth court proceedings.”

1. On 6 July 2022, the AFPA accepted Mr Giberti’s instructions to assist with an application in the Commission. It advised Mr Giberti that he would need to request specific legal assistance with any Court proceedings. Mr Giberti completed an unfair dismissal application form and sent it to the AFPA.

1. On 7 July 2022, Mr Giberti and the AFPA met via MS Teams. After the meeting, the AFPA sent instructions to Mr Giberti about lodging an unfair dismissal claim and the AFPA’s Legal Assistance Scheme.

1. On 8 July 2022, Mr Giberti made his application to the Commission.

1. Separately in July 2022, Mr Giberti applied to the ACT Human Rights Commission in relation to the dispute. His application was rejected on jurisdictional grounds. Mr Giberti then applied to the Australian Human Rights Commission to deal with similar issues to those raised in this application. The AFP has not yet been notified of the application other than in the course of these proceedings.

Relevant factors

1. Reason for delay: Initially, Mr Giberti sought to rely on representative error (failing to comply with the 21-day timeframe) as the reason for delay, submitting that he had made his application as soon as practicable after notification that it had not been progressed by the AFPA. The position evolved such that by the time of filing his submissions and at the hearing, Mr Giberti no longer relied on representative error (appropriately, in my view) and instead argued for an extension of time on the basis of the AFPA’s failure to advise him of the 21-day filing period for making an unfair dismissal claim and because he has not ‘sat on his hands’. He also submits that he was wishing to pursue other avenues, and that he was busy with life, including mitigating his personal losses.

1. Mr Giberti was aware of his option in relation to an unfair dismissal claim as early as February 2022. Mr Giberti says he understood from discussions with the AFPA in February 2022 that it would make an unfair dismissal claim on his behalf, but he did not tell the AFPA he had been dismissed until 18 May 2022. He cannot have assumed that the AFPA would have applied to the Commission on his behalf before that time, because the AFPA did not know that the dismissal had occurred.

1. I accept that Mr Giberti did not know about the 21‑day filing period until 7 June 2022 when he found out from a friend, and that this was later confirmed by the AFPA. However, I do not accept that if he had known about the time limit earlier, Mr Giberti would have applied to the Commission in time. Mr Giberti did not decide to make an unfair dismissal claim until 7 June 2022. Before then, his focus was on pursuing other avenues of redress in relation to CO10. When Mr Giberti did become aware of the time limit and the fact that it had now passed, he did not apply to the Commission straight away but instead took a further month to make his application.

1. Whether the person first became aware of the dismissal after it had taken effect: Mr Giberti knew about his dismissal from the AFP on 31 March 2022 when he received an email from the AFP with a letter of termination.

1. Any action taken by the person to dispute the dismissal: There is no doubt that Mr Giberti was engaged in extensive communication with the AFP before his dismissal about its direction that he become vaccinated under CO10. Mr Giberti did not accept the direction and made this clear to the AFP through a series of internal and external complaints about CO10 and the effect it was having on his employment. The AFP was aware of the dispute. At the time Mr Giberti was dismissed, the AFP anticipated the possibility that he might make an unfair dismissal claim and was initially surprised when this did not occur.

1. The 21‑day filing period expired on 21 April 2022. As the chronology highlights, despite the various avenues through which Mr Giberti sought to address his concerns about CO10 more broadly, Mr Giberti did not take active steps to dispute his dismissal until 8 May 2022 at the earliest. This is when he asked the AFPA if it would support a fair work challenge on behalf of a number of AFP appointees. Mr Giberti did not tell the AFPA that he had been dismissed until 18 May 2022 and did not ask the AFPA to make a claim on his behalf in relation to the dismissal until 7 June 2022. The application was then made a month later on 8 July 2022.

1. Prejudice to the employer (including prejudice caused by the delay): The application is almost three months late. The AFP asserts no prejudice if the application proceeds other than having lost the general benefit of engaging with, and potentially resolving, the matter at an earlier time.

1. Merits of the application: There is no dispute that Mr Giberti was required to comply with directions and orders of the AFP Commissioner and that, in relation to CO10, he did not do so. The materials suggest a procedurally fair process preceding the dismissal and an opportunity for Mr Giberti to use his leave entitlements before a show cause process was commenced. On termination of employment, Mr Giberti was paid his accrued entitlements including 4 week’s wages in lieu of notice.

1. Mr Giberti’s submissions in relation to the AFP acting unfairly or unlawfully when it prevented him from attending the workplace while unvaccinated (which is not the same as being dismissed), and placed him on miscellaneous leave without pay, are unlikely to carry much weight in the circumstances. In November 2021, the practice of preventing unvaccinated employees from attending the workplace was a common tool for managing risks associated with the COVID-19 pandemic. On the face of the record, the reason that Mr Giberti was placed on miscellaneous leave without pay was that he did not submit a leave request for an alternative form of leave, despite being asked to on multiple occasions. While I accept that he was told that his prospects of being granted miscellaneous leave with pay were ‘slim at best’, there were other options available to him to take leave rather than leave himself vulnerable to termination of employment. Mr Giberti was eventually placed on miscellaneous leave with pay during the show cause process in relation to his employment.

1. Mr Giberti’s submissions in relation to his various reasons for not complying with CO10 including his religious beliefs, privacy concerns, fair work practices concerns and the safety of COVID-19 vaccinations are unlikely to succeed given the nature of his arguments and the weight of precedent on these issues in both the Commission and the courts. So it is for the submissions in relation to the financial consequences flowing from loss of employment – which are likely to be attributed to the choice made by Mr Giberti to not become vaccinated against COVID-19 rather than to the AFP’s decision to dismiss him.

1. Each of these matters are of course to be considered against the background of Mr Giberti’s long period of service, his accrued level of skill and experience over time and other matters of relevance that may arise during the proceeding. Even so, on my assessment of his case, the merits are not strong.

1. Fairness as between the person and other persons in a similar position: Mr Giberti alleges that despite more serious breaches by AFP appointees, those individuals have not been dismissed. Examples are given of leaving firearms in cars, partying in breach of public health orders, domestic violence and sexual harassment. Certainly, these are serious allegations. They are made without any evidence to support them.

1. Mr Giberti submits that the dismissal of unvaccinated employees has disproportionately targeted individuals over 50 years of age. I cannot say if the evidence will bear this out, but there is little to support the allegation on the face of the record.

1. Finally, Mr Giberti submits that he is unfairly disadvantaged compared to other members of the AFPA who lost their jobs for the same reason. Those employees were told by the AFPA about the 21‑day timeframe, while he was not. This is a difference of treatment by the AFPA in relation to its members, rather than by the AFP in relation to its employees. Further, the consequences of the AFPA having given different advice to different members for this case are not apparent given the chronology of events outlined above. I have given it little weight.

Conclusion

1. I accept that for Mr Giberti, dealing with the whole issue of CO10 has been exhausting and he feels he has been sent ‘from pillar to post’. I also accept that his actions show he has not ‘sat on his hands’ in relation to his concerns about CO10.

1. However, I am not satisfied that there are exceptional circumstances in this case such that an extension of time can be allowed. None of the circumstances affecting Mr Giberti in the 21‑day period after his dismissal were “out of the ordinary course, or unusual, or special, or uncommon” either on their own or when considered together. Instead, they were the ordinary circumstances of a person who has lost their job in disputed circumstances and is seeking to mitigate their loss.

1. It is well established that ignorance of the 21-day filing period is not an exceptional circumstance. The same can be said about having competing priorities and making the choice to pursue avenues other than unfair dismissal. While Mr Giberti had been unwell due to the stress of dealing with the AFP in relation to CO10, he retained the capacity to engage in extensive correspondence with various agencies about his concerns in relation to CO10. Further, stress is a relatively common (and unexceptional) response to both the prospect of dismissal and its reality. None of these circumstances attain a different character simply because they occurred in connection with the COVID-19 pandemic.

1. Even if there were exceptional circumstances, I would not exercise my discretion to allow additional time in this case. Both before and after his dismissal, Mr Giberti knew about the option of making an unfair dismissal claim. He became aware of the dismissal on the day that it took effect. After the dismissal, Mr Giberti was focused on other avenues to address his concerns and on working in his new job. When Mr Giberti did finally instruct the AFPA to make an unfair dismissal claim on his behalf, the 21-day filing period had passed.

1. Except for his competing priorities, Mr Giberti has given no explanation for the period of inaction after dismissal between 21 April 2022 (when the filing period expired) and 8 May 2022, when Mr Giberti approached the AFPA about the possibility of a “fair work challenge”. There was then a further month of delay between 7 June 2022 (when Mr Giberti became aware of the 21-day time limit) and 8 July 2022 (when the application was filed). During this period Mr Giberti was liaising with the AFPA about making a claim but neither he nor AFPA took prompt action to seek to overcome the jurisdictional barrier to his claim by filing it promptly in the Commission.

1. The merits of the case do not favour a grant of additional time. The absence of prejudice to the AFP is a neutral consideration while questions of fairness as between Mr Giberti and other employees would need to be the subject of further evidence for them to be properly assessed.

1. On balance, I decline to allow additional time to Mr Giberti to make his application.

1. The application is dismissed.

COMMISSIONER

Appearances:

A Giberti on his own behalf, with E Giberti as his support person.
P Myrtle on behalf of the respondent.

Hearing details:

2022.
Sydney (by video):
September 6.

Printed by authority of the Commonwealth Government Printer

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[1] Fair Work Act 2009 (Cth), s 394(2).

[2] [2011] 203 IR 1.

[3] Ibid [13].

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