Anthony Webster v Xavier College Ltd
[2022] FWC 1555
•22 JUNE 2022
| [2022] FWC 1555 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Anthony Webster
v
Xavier College Ltd
(U2022/5448)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 22 JUNE 2022 |
Unfair dismissal – application for extension of time – no exceptional circumstances
This decision concerns an application made by Mr Anthony Webster for an extension of time within which to bring his unfair dismissal claim pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Webster’s employment with Xavier College Ltd (respondent) was terminated on 14 April 2022 after the respondent concluded that he was unable to perform his job as the school groundskeeper. Mr Webster was not vaccinated against COVID-19. State public health orders required the respondent to prevent such persons from entering its premises for the purpose of work.
Section 394(2) of the Act states that an unfair dismissal application 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). The period of 21 days ended at midnight on 5 May 2022. Mr Webster contends, and I accept, that he sent his unfair dismissal application to the Commission by express post on 21 April 2022. However, an application is lodged on the day that it is received by the Commission, not the day on which it is sent. As discussed further below, Mr Webster’s application was missorted by Australia Post and was not delivered to the Commission until 19 May 2022. In the meantime, Mr Webster had filed another copy of his application by email on 17 May 2022, which the Commission received immediately. This is the day on which the application was lodged, 12 days out of time. In order for Mr Webster’s application to proceed, he requires the Commission to grant a further period of time within which to bring his application.
The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. The requirement for exceptional circumstances in 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 the Commission considers it fair to do so.
Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. I will consider each of these matters as they pertain to Mr Webster’s application.
The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. Mr Webster submitted that the delay was caused by Australia Post having lost his application, which he had mailed by express post on 21 April 2022, well within the 21-day period for lodgement, leaving ample time for it to be delivered to the Commission within the 21-day period. Mr Webster provided the tracking number for his parcel as well as copies of messages he received from Australia Post. A message dated 10 May 2022 advised that the postal network was facing delays, that more time was required to deliver his item, and that if delivery did not occur by 16 May 2022 Australia Post would be in touch. A message dated 17 May 2022 advised Mr Webster that his item had been missorted, that the issue had now been rectified, and that Australia Post would be in contact shortly. On 18 May 2022, Mr Webster was advised that his item was due for delivery that day. Mr Webster contended that it was reasonable for him to rely on the estimated delivery times for express post on Australia Post’s website, namely two business days, and that he had acted reasonably, both by following up on the delivery status of his application with Australia Post, and then by lodging his application by email on 17 May 2022 after learning that his application had been missorted. The respondent contended that Mr Webster evidently had sufficient computer skills to file his application online, and that he should have done this in the first place, and had he done so, the delay could have been avoided.
Mr Webster chose a method of lodgement permitted by the Fair Work Commission Rules 2013. It was reasonable for him to expect that an application posted on 21 April 2022 would reach the Commission before the end of the 21-day period following his dismissal on 5 May 2022, particularly given that he sent the application by express post. It is clear from Australia Post’s messages to Mr Webster that the application was missorted. The reason that the application document posted by Mr Webster did not reach the Commission within the 21-day period was because it was lost in the mail, through no fault of Mr Webster. However, Mr Webster knew from Australia Post’s message on 10 May 2022 that his application had not been delivered to the Commission, that there were delays in the post and that more time was required to deliver his item. Mr Webster could have lodged his application by email that day. Instead, it was only on 17 May 2022 that he emailed the application to the Commission. In my view, Mr Webster has a reasonable explanation for part of the delay in lodging his application, namely for the period between 5 May 2022 and 10 May 2022. However, he has not established a reasonable explanation for the period of the delay from 10 to 17 May 2022.
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, a Full Bench of the Commission stated that the absence of any explanation for any part of the delay will usually weigh against a conclusion that there are exceptional circumstances, and that a credible explanation for the entirety of the delay will usually weigh in favour of such a conclusion (at [39]). Although that case concerned an extension of time for a general protections application under s 366(2), the reasoning is applicable also to extensions of time for unfair dismissal applications under s 394(3). The Full Bench also made clear that the ‘reason for the delay’ is only one factor to be taken into account in deciding whether there are exceptional circumstances, and that there is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay, this consideration would necessarily tell against a conclusion that there were exceptional circumstances. Rather, the matter involves a question of degree and weight (at [44]). I adopt this approach. In this case, I consider that Mr Webster’s reasonable explanation for part of the delay weighs in favour of a conclusion that there are exceptional circumstances, but only moderately so, given he does not have a reasonable explanation for seven of the twelve days of the delay.
I consider the following matters to be neutral considerations. First, Mr Webster was notified of his dismissal on the day that it took effect (s 394(3)(b)). Secondly, Mr Webster took no action to dispute his dismissal apart from advising the respondent that he intended to take legal action and filing his application (s 394(3)(c)). Thirdly, I do not consider that there is any particular prejudice to the employer associated with the application for an extension of time (s 394(3)(d)). Finally, I am not aware of any matters that are relevant to the question of fairness as between Mr Webster and other persons in a similar position (s 394(3)(f)).
In considering whether there are exceptional circumstances, the Commission must take into account the merits of the application (s 394(3)(e)). At the time of his dismissal, the respondent was subject to the Pandemic COVID-19 Mandatory Vaccination (Specified Facilities) Order 2022 (No. 7) (Order) made by the Victorian Minister for Health pursuant to the Public Health and Wellbeing Act 2008 (PHW Act). The Order came into effect on 12 April 2022 for a three month period and was in similar terms to previous orders that had been in effect since late 2021. The Order required the operators of specified facilities, including schools, to take all reasonable steps to ensure that workers did not enter or remain on their premises for the purposes of work unless they were fully vaccinated or excepted persons. From 13 April 2022, Mr Webster was not a fully vaccinated person. He had previously held an exemption, which the respondent had recognised, however his exemption had expired on 12 April 2022. Mr Webster had not suggested to the respondent that he would seek a further exemption and had made clear that he had concerns about COVID-19 vaccinations and did not intend to become vaccinated.
The respondent dismissed Mr Webster for two reasons: first, because it considered that from 13 April 2022, he could not meet the inherent requirements of his role as a groundskeeper, as the Order prohibited the respondent from allowing him to enter the school premises; and secondly, because he had failed to follow its direction that he have a COVID-19 vaccination. The respondent submitted that it therefore had two valid reasons to dismiss Mr Webster, and that the process it adopted in terminating his employment was fair and reasonable because, among other things, Mr Webster had been notified of the consequences should he not be vaccinated after his exemption expired.
Mr Webster contended that his dismissal was unfair because he had already contracted COVID-19 and had received a serology report detecting antibodies to the virus, such that he did not need to be vaccinated against COVID-19, particularly given that he worked outside. He further contended that the respondent was not in fact required by the Order to prohibit him from entering its premises, because it could have relied on s 165BN(2) of the PHW Act, which states that a person is not guilty of an offence for failing to comply with a pandemic order if the person had a reasonable excuse for failing or refusing to comply. Mr Webster submitted that the respondent should have relied on the reasonable excuse that the application of the Order to his circumstances would cause him financial hardship and affect his mental health. It appears from the termination letter that Mr Webster had also sought to persuade the respondent that if it believed the Order to be an ‘overreach’ of government, it would have a reasonable basis not to comply with it.
In my opinion the merits of Mr Webster’s application are so weak that his application has no reasonable prospects of success. It is clear that Mr Webster was unable to perform the inherent requirements of his job. From 13 April 2022 the respondent was prohibited by the Order from allowing Mr Webster to enter its premises for the purposes of work. His exemption had expired. He was not a vaccinated person. His job could not be done remotely. While the Order contains certain limited exceptions, such as for workers providing urgent specialist clinical or medical care (see s 20 of the Order), it does not recognise exceptions for financial hardship, mental health or cases where employees work outside. There is no arguable case that the respondent could have allowed Mr Webster to work at the school from 13 April 2022 on any of these grounds. Further, Mr Webster’s suggestion to the respondent that the Order constituted government ‘overreach’ is simply an opinion. It would not be a basis upon which a person could claim to have a ‘reasonable excuse’ not to comply with the Order.
Mr Webster submitted that his dismissal was unfair because he was ‘forced and bullied into an experimental medical treatment that is still in its trial period’ and which has ‘many side effects and deaths associated with it’. In fact, vaccines against COVID-19 have been approved for use by the Therapeutic Goods Administration and are recommended by the Australian Technical Advisory Group on Immunisation. Mr Webster is of course entitled to his opinions. He exercised his personal right not to become vaccinated. But that choice had the consequence that Mr Webster became unable to do his job, because his employer could not lawfully allow him to enter its premises for work.
Mr Webster submitted that he had been treated unfairly in various respects, including because his vaccine status had been disclosed to other employees, and because he was relocated to another campus and prohibited from interacting with other staff, which caused his mental health to deteriorate and required him to take stress leave. These matters are variously disputed by the respondent. But in any event, they relate to alleged unfairness during Mr Webster’s employment, not to the question of whether his dismissal was unfair.
After the conclusion of the proceeding, Mr Webster sent to my chambers an email stating that he invoked his ‘rights to not comply with the Victorian Act’ due to his natural immunity and the ‘prevailing Commonwealth documents that are in place to protect (his) rights with respect to civil conscription and discrimination’. These contentions are not reasonably arguable. First, the respondent had an obligation to comply with the Order’s requirement not to allow Mr Webster to enter its premises from 13 April 2022. This obligation was not somehow disengaged by any ‘right’ held by Mr Webster. Secondly, there is in my view no arguable case that the Order, or the Victorian legislation under which it was made, is inconsistent with the federal laws referred to by Mr Webster. But even if such arguments were available, Mr Webster would need to take them to a court. The Commission is an administrative tribunal and must carry out its functions according to law. This point has now been made in a number of decisions of the Commission relating to public health orders, including at the Full Bench level (see for example the recent Full Bench decision in Roy-Chowdhury v Ivanhoe Girls’ Grammar School ([2022] FWCFB 101 at [16]). The Commission proceeds on the basis that legislation and delegated legislation is valid until such time as a court says otherwise.
I am mindful of the fact that an application for an extension of time is in the nature of an interlocutory proceeding (see s 396), however in my view Mr Webster’s application has no reasonable prospect of success. It is plain that there was a valid reason for Mr Webster’s dismissal. The respondent was prohibited from allowing him to enter its premises for work. Mr Webster was the groundsman. He could not undertake his job remotely. In my view the application does not raise any serious question that his dismissal was harsh, unjust or unreasonable. The merits of the application weigh strongly against an extension of time.
Considering all of the above factors, I am not satisfied that there are exceptional circumstances in this case. But even if I had concluded that the circumstances could be characterised as exceptional, I would not have exercised my residual discretion to grant an extension of time, because the merits of the claim are so weak.
I decline to grant an extension of time. The application was therefore not made in accordance with s 394(2). Mr Webster’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
A. Webster for himself
S. Newman-Diver for the respondent
Hearing details:
2022
Melbourne
20 June
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