Alison June Irwin v Woolworths Group Limited T/A Big W Gawler
[2022] FWC 1521
•1 JULY 2022
| [2022] FWC 1521 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alison June Irwin
v
Woolworths Group Limited T/A Big W Gawler
(U2022/5368)
| COMMISSIONER HAMPTON | ADELAIDE, 1 JULY 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – not satisfied that exceptional circumstances exist –extension declined – application dismissed.
What this decision is about
This decision concerns an application by Alison June Irwin (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Ms Irwin’s employment with Woolworths Group Limited T/A Big W Gawler (Woolworths or Respondent) commenced on 9 June 2012 and concluded on 17 April 2022 in the context of a Covid-19 vaccination requirement introduced by her employer. The Applicant declined to provide a proof of vaccination as required by the Respondent’s Covid-19 vaccination policy (policy). The Applicant was employed as a part-time Customer Service employee, most recently in the role of Soft Goods Team Member at the Gawler, South Australia, Big W store.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 13 May 2022.
Section 394(2) of the 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). Adopting 17 April 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 8 May 2022.[1] The application was therefore filed 5 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). The Respondent opposes this request. Although in written submissions the Respondent advanced that the Commission should, in the alternative, dismiss the application under s.399A or s.587(3), I indicated during the hearing that I would not consider the alternative propositions at this point given the nature of the present proceedings and the requirement for an extension of time to be granted for a valid application to be before the Commission.[2]
The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]
Amongst other factors, Ms Irwin relied upon the following principal explanation for the delay in lodging the application as providing the relevant exceptional circumstances:
“The delay was due to my mental health as I was angry and not in a good head space to think about legal proceedings and I had totally fallen off my tracks.”[4]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Ms Irwin provided a brief summary of her position,[5] gave sworn evidence and provided a letter from her General Practitioner. The Respondent provided a comprehensive submission but did not lead any evidence given the nature of the present matter.
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations I have determined that there are not exceptional circumstances and there was no basis to grant an extension of time. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
I found the evidence of Ms Irwin to have been given openly and honestly. I generally accept her evidence about the objective facts.
To the extent that Ms Irwin made statements about the legality or otherwise of the vaccination requirement or speculated about the basis of the payments made to her by Woolworths upon termination, I have treated these as submissions.
The letter from the Applicant’s General Practitioner was obtained on the eve of the hearing and confirmed only that Ms Irwin had:
“I have seen Alison only one occasion in the past. She told me that she suffers mental health issues. There were no follow-up attempts to discuss this further. Please do not hesitate to contact me for further information if you need any” [6]
I have accepted Ms Irwin’s medical circumstances on face value noting that in the context of the evidence and explanation provided more generally, this was at best only a factor in the delay in lodging the unfair dismissal application.
Given the nature of the present proceedings, it is not necessary to comprehensively deal with the events surrounding the introduction of the policy or the substance of the competing positions about its validity.
The sequence of events associated with the dismissal and leading to the lodgement of this application
The policy was introduced in mid-November 2021.
Ms Irwin was first advised that her employment was at risk in a show cause letter dated 31 March 2022. The Applicant responded to that letter on 5 April 2022 and comprehensively raised various concerns about the legal validity of the policy.
On 8 April 2022, the Respondent’s Gawler Store Manager met (by phone) with the Ms Irwin and her advocate/support person, Mr JT. At this meeting, the Applicant was advised that she was to be dismissed and that the effective date of termination was 17 April 2022. Ms Irwin put the Respondent on notice that she would be joining a “class action” against the Respondent arising from its vaccination policy.
Mr JT is a friend and assisted Ms Irwin through the disciplinary process leading to the dismissal and has been a source of advice about the issues flowing from the vaccination policy.
On 27 April 2022, Ms Irwin requested a Statement of Service from the Respondent.
On 29 April 2022, Ms Irwin requested a separation certificate from the Respondent and in subsequent emails also sought clarification as to the basis of the payments made upon termination.
On 2 May 2022, Ms Irwin spoke to “payroll” at Woolworths and received an explanation about the payments made upon termination, including that her pro-rata Long Service Leave had been paid based upon completed years of service (9 years) and that the deduction of taxation may provide an explanation for the (lower than expected) net amount of the payment.
At some point shortly prior to 9 May 2022, Ms Irwin was advised by someone, in effect, that she could contest her dismissal.
For context, I observe that the 21-day initial time period expired on 8 May 2022.
On 9 May 2022, Ms Irwin rang the Commission’s help line and was advised that she was (already) 1 day out of time to lodge the application but could seek an extension of time.
Ms Irwin did not have immediate access to a printer. Ms Irwin proceeded to attend a (pre-arranged) retreat and during that retreat apparently printed and prepared the Form F2 unfair dismissal application.
The application was lodged with the Commission by email on 13 May 2022. Ms Irwin apparently attempted to lodge the application the day before but had an incorrect email address.
For reasons outlined earlier, I have treated Ms Irwin’s medical circumstances on face value. However, given the approach to Woolworths in late April and early May, and access to Mr JT for some support, there was no substantive indication in the evidence that the medical condition generally prevented Ms Irwin from receiving advice or making decisions about her rights including about this application. However, I do accept that this factor (and her other personal circumstances disclosed in the evidence that I will not outline here for privacy reasons) played a part in the timing of her actions at some stages.
However, based upon the evidence taken at its highest, the substantive reason why the application was not lodged on time was that Ms Irwin was unaware of the capacity to make the application and did not make enquiries about this until someone alerted her to that prospect.
I will deal with the further explanation for the delay itself as part of the consideration of this matter.
Should an extension of time be granted?
The 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 stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[8]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[9] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as 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.
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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[10] I now consider these matters in the context of the application currently before the Commission.
Reason 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 for the delay. 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 on their own merits.[11]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[12] The delay in this matter is 5 days and this is the focus of the present consideration. The events leading to that point remain relevant as part of the context for that delay.
The following detailed explanation for the delay was provided with the application itself:
“The reason for the delay was my mental health was severely affected from this situation. I was unable to focus and think straight. I was depressed, I had self harmed out of frustration as I had done nothing wrong. I had been in this job short of 6 weeks, would have been 10 years. I lost out on my 10 years LSL which added to the situation. I did try with the help of John to get my union to help which was a dead end!!! I was only a day late ringing the unfair dismissal line I rang them on 9th May and received instruction on what to do, now I’m feeling better and able to focus and be present and fill out these forms to be able to make a claim to the unfair dismissal Commission. I was off my rails and not counting the days as they all just merged into one as my head and thinking was not clear. I was stressed out about it and my anxiety was through the roof, however I’ve now got back to some normality and processed everything and become clearer to be able to proceed with this process. I can only say I’m very sorry I was a day late in calling to start the process and hope and pray you take this into consideration.
… …”[13]
During her evidence, Ms Irwin provided further context that I have outlined earlier in this decision. Indeed, I have already made factual findings about the events leading to the application and I do not repeat them here.
An applicant’s mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[14]
In this case, I have found that Ms Irwin’s medical and other personal circumstances provide some of the context for the timing of the lodgement of the application; however, the primary reason for the timing was that she was not aware of her capacity to contest the dismissal or the initial time limit and took no action to enquire into her rights until she was advised to do so. The lack of such awareness, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[15]
The actual delay in lodgement is the 5 days. The application was already late when Ms Irwin approached the Commission. The explanation for the delay (1 day at that point) is not a satisfactory explanation.
There is some justification for the additional delay after contacting the Commission. This has been set out earlier. This does provide some explanation although it is a reasonable inference that the making of the application was not considered to be an absolute priority at that point.
Given those findings I consider that Ms Irwin has not provided a credible or satisfactory explanation for the period of the delay in making the unfair dismissal application.
The delay in this matter is relatively short but my conclusion about the explanation for the delay tells in against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that Ms Irwin was aware of her dismissal on 8 April 2022 when she attended a meeting with her manager. A period of notice was also provided. This means that she had the full 21-day period to make the application. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Irwin took no action to dispute her termination up until the time that she contacted the Commission.
The factor is not conducive to a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The delay is relatively short and there is no suggestion that this has of itself led to prejudice. However, the notion of prejudice under this consideration is stated more broadly. In that respect, the Respondent contends that it is prejudiced because, in effect, it would be required to commit unnecessary time and costs associated with having to defend the application. This proposition is founded, at least in part, upon its view about the strength of its position regarding the policy and its application to Ms Irwin. This relates to the merits of the application, and I will come to these shortly.
No additional prejudice has been demonstrated by the Respondent.[16] I have taken this into account in my assessment of exceptional circumstances.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[17] Further, the primary consideration is whether the Applicant has an arguable case.[18]
In the application, Ms Irwin contends, in effect, as follows:
·There was no law that required her to be vaccinated;
·She had no deficiencies in her performance that would justify her dismissal;
·No person should not be terminated from employment because of a medical procedure. Mandates such as this violate all state and federal laws and our “God Given Freedom Rights”; and
·The policy made no sense as she could, as a customer of the Respondent, attend the store without being vaccinated.
The Respondent contends as follows in its response submissions:
“The Application has no reasonable prospects of success. The FWC decisions in relation to other respondents who implemented similar vaccination policies have confirmed that where the respondent meets its consultation obligations prior to implementing the policy, the FWC will find that:
· the policy is a lawful and reasonable direction; and
· termination for non-compliance with the policy will be a valid reason for dismissal.”
Some of the broad concerns raised in the application have been considered by various Courts and by the Commission. In general terms, the Commission has found that vaccination policies that are introduced by an employer with proper consultation and with appropriate safeguards and exceptions, may provide the basis for a lawful and reasonable direction. However, each case must be determined on its own merits having regard to the risks and other circumstances within the business and the community at the relevant time, and the detail of the policy and its application to the employee concerned. The competing contentions about the policy here would need to be the subject of more detailed evidence than is presently before the Commission to enable any decision or conclusions to be made on these aspects.
I have weighed all aspects of this consideration into the overall assessment of exceptional circumstances required in this matter.
Fairness as between the person and other persons in a similar position
Nothing of relevance was advanced on this aspect.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a) of the FW Act, and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[19]to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
A Irwin, the Applicant, on her own behalf.
K Staude, on behalf of Woolworths Group Limited T/A Big W Gawler, the Respondent.
Hearing details:
2022
June 22
Video Hearing.
[1] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[2] Woolworths ultimately did not press these matters.
[3] Section 394(3) of the Act.
[4] Written submissions 6 June 2022.
[5] Written submissions of 6 June 2022.
[6] Letter dated 21 June 2022.
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[8] Ibid.
[9] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[10] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[12] Ibid.
[13] Item 5.1 of the Application Form F2.
[14] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[15] Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 5472.
[16] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[17] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[18] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[19] PR743174
Printed by authority of the Commonwealth Government Printer
<PR742695>
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