Amber Furlong v Coloplast Pty Ltd
[2022] FWC 1414
•6 JUNE 2022
| [2022] FWC 1414 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Amber Furlong
v
Coloplast Pty Ltd
(C2022/269)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 6 JUNE 2022 |
Application to deal with contraventions involving dismissal– extension of time – circumstances not exceptional – application dismissed.
This decision concerns an application by Ms Amber Furlong (Applicant) under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal (GP Application). Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).
It is uncontested that Ms Furlong’s employment with Coloplast Pty Ltd (Respondent) ended on 6 December 2021. The GP Application was lodged on 3 January 2022. The period of 21 days ended at midnight on 29 December 2021, as Monday 27 December 2021 and Tuesday 28 December 2021 were substituted public holidays.[1] The GP Application was therefore lodged 5 days out of time. Ms Furlong seeks that the Commission allow a further period of time for the GP Application to be made. The Respondent opposes the grant of an extension of time.
A hearing was held by Microsoft Teams Video on 31 May 2022. Ms Furlong represented herself and gave evidence on her own behalf. Ms Furlong filed an Outline of Argument and a statement of evidence however the statement of evidence went almost exclusively to the merits of Ms Furlong’s dismissal. Accordingly, it was agreed at the commencement of the hearing that factual assertions in Ms Furlong’s Outline of Argument would also comprise her evidence in this matter.
Pursuant to section 596(2)(a) Mr Nicolazzo of Maddocks was granted permission to represent the Respondent as I considered that representation of the Respondent would enable the matter to be dealt with more efficiently, taking the complexity of the matter into account. Ms Caroline Atia filed a witness statement on behalf of the Respondent but was not required for cross examination by Ms Furlong. Accordingly, Ms Atia’s witness statement was tendered and received but Ms Atia did not attend the hearing.
Background
The Respondent is engaged in the development and marketing of medical health care products and services. Ms Furlong commenced employment with the Respondent on 4 October 2021 in the role of Territory Manager Wound Care. The Respondent terminated Ms Furlong’s employment on 6 December 2021 for failure to comply with the Workers in a Healthcare Setting (COVID-19 Vaccination Requirements) Direction[2] (Direction).
Consideration
The Act allows the Commission to extend the period within which a general protections application involving dismissal must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[3]
The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[4] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[5]
Under section 366(2) of the Act, the Commission may allow a further period of time for an application under section 365 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) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
Reason for delay
The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[8] the Full Bench noted that the absence of an 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 the applicant’s favour, however, all the circumstances must be considered.[9] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[10]
Ms Furlong says that the reasons for the delay in lodgement are manifold, some of which were not included in her Outline of Argument but are raised in an email to the Commission on 6 January 2022 [11] (Email) following Ms Furlong being advised that the GP Application had been lodged outside the statutory time frame. Firstly, Ms Furlong says that she “thought it was 21 business days” to lodge a general protections application.[12] In the Email Ms Furlong also says that “I was not actually late lodging due to the public holidays and weekends during the time since I was terminated – and the time I was incapacitated and in hospital I don’t believe should count as I was unable to submit it.” Secondly, she says that she was selling her house and the “sale almost fell through Dec 21” and that the final days before Christmas 2021 were spent finalising the sale.[13] Thirdly, she says that she attempted to lodge using the online lodgement system on 24 December 2021, 27 December 2021 and 4 January 2022 but the website was unavailable and informed her that the best option was to lodge in person. She attempted to telephone the Commission’s Brisbane registry on 4 January 2022 but it was closed, following which “she gave up and emailed.”[14] Fourthly, she was suffering medical issues, both physical and psychological. In relation to her psychological issues Ms Furlong says that she suffers from PTSD[15] and relies upon records of a medical admission at Noosa Hospital in July 2014[16] (Noosa Hospital Documents). As to her physical medical issues, Ms Furlong says that the details of this “are personal and not relevant to the case”[17] but says that during the 21 day period she attended a number of appointments, tests, procedures and a hospital admission and relies upon Ramsay Health Admission Forms,[18] Medicare Claims History[19] and invoices for anaesthesia on 21 December 2021[20] and pathology services also provided on that date.[21] In the Email Ms Furlong also says that “I am being investigated for cancer as have growths on my thyroid (being removed in April).” Fifthly, she was suffering financial hardship, which meant she did not have funds to pay the application fee, could not obtain legal advice and was evicted from her rental property. Sixthly, she was confused around the validity of her dismissal and unable to obtain legal or medical assistance in relation to the Respondent’s refusal to accept the medical evidence she had provided as a valid exemption from the Direction.
Firstly, as to Ms Furlong’s understanding that the time frame for lodgement was 21 business days, it is well established that ignorance of one’s rights is not an acceptable or reasonable explanation for a delay in lodgement.[22] Further, Ms Furlong’s own evidence is that on 10 December 2021, being 4 days after her dismissal, she sought advice from Jobwatch regarding her dismissal and was provided with a fact sheet via email regarding general protections dismissal claims (Fact Sheet) on that date.[23] The Fact Sheet[24] is entitled “General Protections Dispute – Termination (21 days to claim)”. This is in large font and bold type and at the head of the Fact Sheet. On the first page of the Fact Sheet in a highlighted box and marked with a large exclamation mark is the text “Note: You have 21 days from the date your dismissal took effect to file your unfair or general protections dispute -termination claim.” In light of this, I am unable to see how Ms Furlong could have believed that the statutory time frame was 21 business days or that weekends ought not be considered within the 21 day time frame. Further, the public holidays that fell between Ms Furlong’s dismissal and the time for lodgement were entirely foreseeable and could not be said to be an exceptional circumstance of themselves. Finally, I note that the Commission’s website states that the 21 day time frame is not extended because of public holidays or weekends that fall during the 21 days lodgement period. This does not provide a reasonable or acceptable explanation for the delay in lodgement.
Secondly, as set out in paragraph [9] above, whilst the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay, the period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. As such, I do not consider that the sale of Ms Furlong’s house prior to the expiry of the 21 day statutory time frame on 29 December 2022 provides a reasonable or acceptable explanation for the delay in lodgement. Further, I do not consider the sale of a house to be out of the ordinary course, or unusual, or special, or uncommon.
Thirdly, as to Ms Furlong’s assertion regarding her inability to access the on-line lodgement system and her attempts at telephoning the Commission, I note firstly that she provided no probative evidence of any of these matters. Secondly, the Commission’s on-line lodgement system was taken down on Monday 13 September 2021 and was not in existence in December 2021. Further, until 13 February 2022 under the heading “How to lodge forms” the Commission website, relevantly, provided as follows:
“Completed forms can be lodged with one of our Fair Work Commission offices:
· by email;
· by fax; or
· by post.
…
Australia Post is experiencing delays because of COVID-19 so we strongly encourage you to use email where possible.…”
Similarly, the General Protections Dismissal page of the website in December 2021 also instructed applicants to lodge by email or fax. Thirdly, the Commission was open on 30 and 31 December 2021 and was therefore not closed from 25 December 2021 until 5 January 2021 as asserted by Ms Furlong. Finally, I note that the Application was lodged on 3 January 2021 by email prior to the telephone call Ms Furlong asserts she made to the Brisbane Registry on 4 January 2022, following which she “gave up and emailed.” Accordingly, I do not consider Ms Furlong’s asserted attempts to lodge the Application prior to 3 January 2022 provide a reasonable or acceptable explanation for the delay.
Fourthly, as to Ms Furlong’s health issues, there is no probative evidence that Ms Furlong was suffering any psychological issues, including PTSD, in December 2021 or January 2022. The Noosa Hospital Documents are from an admission in 2014. As such, they say nothing about Ms Furlong’s psychological health in December 2021 and January 2022. Further, they do not provide that Ms Furlong had or has PTSD. During the course of December 2021 following her dismissal Ms Furlong was able to contact Jobwatch for advice, indeed her evidence at hearing was that she contacted Jobwatch on both 10 and 11 December 2021, she was able to post lengthy commentary regarding her dismissal on social media,[25] she was able to complete the sale of her house and her evidence at hearing was that she spoke to the Commission prior to Christmas 2021 “about 10 times”. Accordingly, not only is there no probative evidence of Ms Furlong’s asserted psychological condition, Ms Furlong had capacity to attend to the above matters. In light of that, I am unable to see how she did not also have capacity to lodge the GP Application in time. This does not provide a reasonable or acceptable explanation for the delay in lodgement.
As to Ms Furlong physical medical issues, the material filed by Ms Furlong demonstrates that she was admitted to hospital on 21 December 2021 for a gastroscopy and colonoscopy. The documentation indicates this was a day procedure. I do however note that the documentation also indicates that Ms Furlong had polyps removed during the procedure.[26] At hearing Ms Furlong said that whilst the procedure was a day procedure she had to fast and undertake other preparation for the procedure for three days prior. I accept that evidence. However, as set out above, notwithstanding her medical procedure on 21 December 2021 and any preparation for it, Ms Furlong was able to attend to many other matters throughout December 2021 in the 21 day period following her dismissal. Accordingly, I do not consider that Ms Furlong’s physical medical issues related to her day admission on 21 December 2021 were such as to prevent her from lodging the GP Application in time. As to the other medical matters referred to in the Email, whilst I accept this is no doubt a worrying matter for Ms Furlong, she provided no probative evidence of these matters nor any evidence as to when the relevant investigations occurred or any impact these matters had on her ability to lodge the GP Application in time. Further, on the material available, any surgery related to this further medical issue was not until April 2022, some three months after the GP Application was lodged. This cannot provide a reasonable or acceptable explanation for the delay in lodgement.
As to Ms Furlong’s financial hardship, the Form F8 general protections application contains a section for financial hardship under the application fee section,[27] which provides that if paying the fee would cause the applicant financial hardship an applicant can apply to have the fee waived. Ms Furlong did not seek that the application fee be waived, electing instead to pay by credit card. Additionally, Ms Furlong has not provided any probative evidence of financial hardship. As to Ms Furlong’s assertion that she was evicted from the property she was living in, the documentation provided[28] does not support that assertion. The Notice provided by Ms Furlong is not an eviction notice; rather it is a notice to remedy rental arrears (Breach Notice) for the period 29 December 2021 until 19 January 2022. Further, the Breach Notice was issued on 19 January 2022, 16 days after the GP Application was lodged. It therefore cannot provide a reasonable or acceptable explanation for the delay. In addition, the tenant ledger[29] provided by Ms Furlong does not demonstrate any rental amount being in arrears. Nor does it demonstrate any financial hardship. Rather, it demonstrates regular rental payments being made on a weekly basis for the period January 2021 to January 2022. As to Ms Furlong’s assertion that as a consequence of her financial hardship she was unable to access legal advice, I reject that submission. She spoke with Jobwatch on 10 December 2021 and 11 December 2021 and was provided with information regarding general protections dismissal applications on 10 December 2021, 4 days after her dismissal. Finally, in my view, although regrettable, financial distress following the termination of one’s employment and the consequent loss of income cannot be said to uncommon or special or unusual. It does not provide a reasonable or acceptable explanation for the delay in lodgement.
Finally, as to being confused about the validity of her dismissal and her inability to obtain assistance, I also reject those submissions. Firstly, in response to a post by Ms Furlong regarding her dismissal, the following was posted “Hi Amber, this is terrible times. The mandate is NOT law. You should see a lawyer, as I am certain this is unlawful dismissal.” Ms Furlong replied “Thanks Daniel. I thought so too regarding mandates and did highlight the Federal Laws around Anti-discrimination to my employer. I was told mandates override them. Fairwork suggests a lawyer too, will keep trying to find one.”[30] Ms Furlong’s evidence at hearing was that she thought these posts occurred on about 10 December 2021. Accordingly, I consider it clear from Ms Furlong’s social media posts that from, at least, about 10 December 2021 she did not consider her dismissal to be valid. Secondly, by about 10 December 2021 Ms Furlong’s posts indicate that she had contacted the Commission regarding her dismissal. Thirdly, Ms Furlong was provided with a Form F8 by Jobwatch on 10 December 2021. Fourthly, her evidence was that she spoke with Jobwatch again on 11 December 2021 and the Commission multiple times prior to Christmas 2021. In light of these matters, I considered it clear that Ms Furlong did not consider her dismissal to be “valid” and reject that she was confused as to this. It is also clear Ms Furlong did obtain assistance from Jobwatch and further, that Jobwatch provided her with a Form F8. All of these matters occurred shortly after Ms Furlong’s dismissal and well within the 21 day statutory time frame for lodging the GP Application. Accordingly, this does not provide a reasonable or acceptable explanation for the delay in lodgement.
I do not consider there is a reasonable or acceptable explanation for the delay in lodgement, whether the reasons provided by Ms Furlong are considered collectively or individually. This weighs against the grant of an extension of time.
Action taken by the person to dispute the dismissal
Ms Furlong’s evidence is that the action she took to dispute the dismissal was seeking to obtain an appointment with an immunologist.[31] I understand this to mean that Ms Furlong’s efforts were directed at seeking to obtain a permanent medical exemption from vaccination for COVID -19 on the basis of her anaphylaxis. Ms Furlong relies on correspondence with the Allergy & Anaphylaxis Association.[32] Whilst I accept that Ms Furlong was seeking to obtain a permanent medical exemption I do not consider that this can be said to be action which disputes the dismissal. Rather, it is action taken to seek to avoid dismissal. Further, the correspondence relied upon is dated 15 November 2021 and as such predates the dismissal by a number of weeks. In those circumstances it simply cannot constitute action taken to dispute the dismissal. This weighs against the grant of an extension of time.
Prejudice to the employer
The Respondent submits that the delay in filing the GP Application has prejudiced it by the time, inconvenience and costs involved in responding to Ms Furlong’s extension of time application.[33] Whilst I accept that the Respondent has been required to so respond, I do not consider this to give rise to any significant prejudice to the Respondent and cannot identify any particular prejudice that would accrue to it were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
Ms Furlong submits that her dismissal was in breach of section 351 of Act.[34] She submits that she suffers from anaphylaxis and the Respondent dismissed her because of this medical condition, which she says constitutes a physical disability for the purposes of section 351 of the Act. [35] It is uncontested that the Respondent dismissed Ms Furlong and therefore it also appears uncontested that the Respondent took adverse action against Ms Furlong in the form of dismissal. However, the Respondent submits that the reason for Ms Furlong’s dismissal was due to her failure to comply with the Direction and her inability to fulfil the inherent requirements of her role. It submits that the decision to terminate Ms Furlong’s employment did not relate to any medical condition or disability.[36] At issue, is the refusal by the Respondent to accept the Immunisation Register immunisation medical exemption from (AIR form) completed by Ms Furlong’s general practitioner (GP) as a valid exemption from the requirements of the Direction. In 2014 Ms Furlong had an anaphylactic reaction to antibiotics.[37] Due to her anaphylaxis to antibiotics Ms Furlong determined not to be vaccinated and provided the AIR Form to the Respondent. The AIR Form provided a temporary vaccine exemption against COVID-19 until 1 January 2022.[38] Ms Furlong also provided the Respondent with a letter from her GP referring her to an allergy medical group “for opinion and management of a permanent exemption from Pfizer, vac”.[39] The Respondent did not accept the AIR Form as a satisfactory exemption from the Direction as it said that the AIR Form did not record any reason for Ms Furlong’s non-permanent contraindication by selecting any of the provided options on the form; rather the GP notated the form by hand that Ms Furlong had “Anaphylactic reaction from antibiotics”, did not record a permanent exemption from vaccination and did not provide that Ms Furlong could not receive the AstraZeneca COVID-19 vaccine.
Based on the material before the Commission and the provisions of section 351(2) of the Act, I incline to the view that the GP Application has limited prospects of success. However, for present purposes I am prepared to consider this a neutral consideration.
Fairness as between the person and another person in a like position
Applications to extend time generally turn on their own facts. Section 366(2)(e) is directed at ensuring that the Commission adopts a consistent approach to matters of a similar kind which are either currently before the Commission or which have previously been decided.[40] Further, the comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of making an application under section 365.[41]
The Applicant submits that her position is less fair than employees who do not have a medical condition and whose employment has been terminated for failure to comply with the Direction due to their personal beliefs. Further, she submits that her position is less fair than unvaccinated Queensland Health employees who have been granted sick leave.[42] The Respondent submits that it would be unfair for those persons who have been dismissed for non compliance with the Direction for the GP Application to be heard and accepted. Further, it submits it would be unfair to previous applicants who were unsuccessful in having an extension of time granted.
I do not find the submissions of either party to be of assistance. Accordingly, I consider this to be a neutral consideration.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
I have carefully considered each of the matters advanced by Ms Furlong, both individually and collectively. Having regard to all of the factors which I am required to take into account under section 366(2), I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Ms Furlong’s application, whether the matters advanced by Ms Furlong are considered collectively or individually.
Accordingly, I decline to grant an extension of time under section 366(2).
Ms Furlong’s application under section 365 of the Act is dismissed.
DEPUTY PRESIDENT
Appearances:
A Furlong for the Applicant
M Nicolazza for the Respondent
Hearing details:
Melbourne (by Microsoft Teams)
31 May 2022
Final written submissions:
Applicant: 20 April 2022
Respondent: 4 May 2022
[1] See section 36(2) of the Acts Interpretation Act 1901 (Cth)
[2] CB pg 64
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]
[4] [2011] FWAFB 975
[5] Ibid at [13]
[6] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
[7] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]
[8] [2018] FWCFB 901
[9] Ibid at [39]
[10] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]
[11] CB pg 77
[12] Email from Applicant to Brisbane Registry of the Commission, dated 6 January 2022.
[13] Ibid
[14] Ibid
[15] Applicant’s Outline of Argument, q1(d)
[16] CB pg 130-139
[17] Applicant’s Outline of Argument, q1(d)
[18] CB pg 116-123
[19] CB pg 124-129
[20] CB pg 79
[21] CB at 80
[22] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14]
[23] CB pg 141
[24] Exhibit R1
[25] CB pg 220
[26] CB pg 127
[27] See page 9 of the GP Application
[28] CB pg 145
[29] CB pg 142-144
[30] CB pg 221
[31] Applicant’s Outline of Argument, q1(e)
[32] CB pg 140
[33] Respondent’s Outline of Submissions at [44]
[34] Form F8 at 3.2
[35] Applicant’s Outline of Argument, q1(h)
[36] Respondent’s Outline of Argument at [45]
[37] CB pg 56
[38] CB pg 56
[39] CB pg 54
[40] Wilson v Woolworths [2010] WA 2480 at [24-29]
[41] Ballarat Truck Centre Pty Ltd v Kerr[2011] FWAFB 5645 at [26]
[42] Applicant’s Outline of Submissions, q1(i)
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