Artur Terziu v Swan Transit Joondalup
[2022] FWC 884
| [2022] FWC 884 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Artur Terziu
v
Swan Transit Joondalup
(U2022/2991)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 20 APRIL 2022 |
Application for an unfair dismissal remedy
On 10 March 2022, Mr Artur Terziu (the Applicant) applied for an unfair dismissal remedy having been dismissed from Swan Transit Joondalup (the Respondent) on 14 February 2022. The Respondent objects to the application on the basis that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with that objection.
Section 396 of the Act provides that the Fair Work Commission (the Commission) must determine four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not contested by the Applicant that the unfair dismissal application was made out of time. For the application to now proceed, it is necessary for the Applicant to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application 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) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.[1]
The issue before me is whether the circumstances in this matter are exceptional, and whether it is fair and equitable for an extension to be granted.
The parties requested that I determine the matter on the papers. Having considered the materials filed and the views of the parties, I determined this to be the appropriate course in light of s 577 of the Act.
Background
The Applicant was employed on 19 January 2020 as a bus driver. As a bus driver, he was required to comply with the Public and Commercial Transport Workers (Restrictions on Access) Directions issued on 3 December 2021 under ss 157(1)(e), 157(1)(k), 180 and 190(1)(p) of the Public Health Act 2016 (WA) (the Directions). In the letter of termination of 14 February 2022, the Respondent set out that the Applicant, having chosen not to comply with the Directions, was not permitted to enter or attend the workplace and was therefore not able to perform the inherent requirements of his duties.
The Applicant was notified of his dismissal on 14 February 2022, and it took effect that same day. The Applicant concedes his application was made three days outside the 21-day time limit provided by s 394 of the Act.
According to the Applicant, he presented for work on 14 February 2022 and was told that his employment was terminated and was sent home.
On 15 February 2022, the Applicant emailed Mr Brian Thompson, General Manager, to express that he felt he had been unfairly treated, and to raise a dispute.
The Applicant states that he only had a reply from Mr Thompson on 16 February 2022, the day that he returned property back to the Respondent.
The Applicant notes that in addition to the above, he had been on leave from 17 December 2021 until 13 February 2022, prior to his dismissal. The reason – stress. The Applicant continued that having had his employment terminated on 14 February 2022, he had descended in a downward spiral. However, he did not have a medical certificate for the period as he did not have a reason to obtain one.
Furthermore, the Applicant explained that whilst time was running in the 21-day statutory period, he heard the Queensland Senator of One Nation, Mr Malcolm Roberts, speak to ‘Fair Work Australia’ in a live conference, regarding companies who had neglected to submit or present risk assessments to ‘Fair Work’ or employees. Having heard this and having requested a risk assessment for the mandating of an experimental medical procedure, the Applicant felt he had a case.
The Applicant also noted that he had been unaware that 7 March 2022 was included in the 21-day limit not withstanding it being a public holiday.
Consideration
The Commission holds discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (f) of s 394(3) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[2]
In the decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty),[3] the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains a discretion to grant or refuse an extension of time.[4] Whilst Nulty considered the general protection provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.
The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] 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.[6]
In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[7] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1) of the Act, the observation remains relevant:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[8]
In the directions issued to the parties they were referred to s 394(3) of the Act.
Reasons for the delay in filing the application
Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that his application was delayed.[9] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[10] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[11]
The Respondent submits that there are no exceptional circumstances when one considers, among other factors, that the Applicant:
a) sent correspondence to Mr Thompson the day after his dismissal reiterating prior correspondence that the Respondent was acting unlawfully in asking for his vaccination status, and Mr Thompson responded the following day providing a response that was consistent with that provided to the Applicant since the issuance of the Directions;
b) may have been ignorant as to 7 March 2022 being included in the 21-day limit, but ignorance does not constitute an exceptional circumstance;
c) may have been stressed having been dismissed but dismissal will always be stressful and should not be considered an exceptional circumstance, particularly in the absence of a medical certificate to support his late application; and
d) may have listened to a speech from a Senator, but this does not address why his application was submitted late.
It is accepted that ignorance of the timeframe does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[12] Furthermore, if the final day of the 21-day period falls on a weekend or on a public holiday (where the Commission is closed) the timeframe will be extended until the next business day. Of course, public holidays or weekends that fall during the 21-days will not extend the period of lodgement. The Applicant was due to file his unfair dismissal application on 8 March 2022 (because of the public holiday on 7 March 2022) but filed it on 10 March 2022. The Applicant’s lack of knowledge regarding the public holiday and its bearing on the count, does not, in my view, provide a plausible explanation for the delay or part of the delay.
At the time of his dismissal, the Applicant contends that he found his circumstances to be ‘stressful’. While sympathetic to the Applicant’s circumstances, there is no evidence to corroborate that he was so incapacitated from stress that he was unable to make an unfair dismissal application within the requisite period. It is common for employees to suffer shock and trauma because of dismissal from employment.[13]
An argument that the Applicant was hampered in making his application because Mr Thompson did not respond to him until one day after his enquiry, is not made out on the evidence. Mr Thompson’s reply was neither tardy nor revealed information that had bearing on the Applicant not making his application in time.
Regarding the Applicant having heard a purported speech from a One Nation Senator – the point is irrelevant in the context of this application.
I have considered the delay as the period beyond the 21-day period. However, regard has been had to the circumstances from the date the dismissal took effect. As noted, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for part of, or the whole period of, the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
Whether the Applicant became aware of the dismissal after it took effect
At all material times from the time the Applicant was notified of the end date of his employment until the date the unfair dismissal application was made, the Applicant knew his employment had ended. I consider this to be a neutral factor.
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[14] I have considered all the evidence in this respect.
On 15 February 2022, the Applicant engaged with the Respondent to emphasise what he believed to be unfair and discriminatory actions against him. He outlined the issues he had with Mr Thompson; they were:
a) You caused a great amount of distress in my household, as my family were very excited to know I was being able to return to my job that I have safely carried out for over 7 years
b) You have discriminated against me for not taking a medical drug despite the latest scientific evidence showing that the vaccinated can contract, spread and get hospitalised from the virus
c) You have yet to present me with any formal documentation stating that you will be fined if I am not vaccinated, or showing the risk assessment which shows the scientific proof of an unvaccinated person presenting a risk in the work place
d) I have to date not once received an updated work contract which has new guidelines specifying that terms of contract now include not two, but three Covid-19 Vaccinations – which are all only provisionally approved drugs with to date over 100,000 TGA recordings of adverse reactions and side-effects – there should ALWAYS be choice when there is risk!
e) My contract has been unfairly terminated as I have not done anything that goes against my current work contract, all that I have done, as a living man, is practice my human rights to choose if I want to partake in the testing of a trial drug (this also goes against Nuremburg Code).
The Applicant concluded his email dated 15 February 2022, with the following:
Please be aware that in due time I will be taking further legal actions against you, Brian Thompson, Kurt McNicol, Dan Aldermann and Alan Ritchie, as you have placed me and my family under immense financial, emotional and mental stress.
While the Applicant has identified issues with the dismissal, his concluding paragraph notes that he will, at a future date, take further legal action. It is therefore not apparent that the Applicant has contested the dismissal at this stage, but rather is forewarning the Respondent that he will do so in due time.
Having considered the evidence and submissions of the Applicant and Respondent, I consider this to be a neutral factor.
Prejudice to the employer
I cannot identify any particular prejudice that the Respondent would incur if an extension of time were to be granted. I therefore consider this to be a neutral factor in the present case.
Merits of the application
The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2) of the Act and whether an extension of time in which to make the application should be provided. These are initial matters to be considered before the merits of the application.
In Kornicki v Telstra-Network Technology Group, [15] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Full Bench said:
If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[16]
Concerning the substantive application, the merits have not been fully tested which is understandable given the stage of the proceedings. However, the Respondent has pointed to recent decisions of the Commission in which it has been concluded that employers have a valid reason to dismiss employees who have not provided evidence of vaccination on the basis of incapacity, if unable to perform the inherent requirements of their role.[17]
The Respondent also submits it has shown patience and tolerance with the Applicant but decided it would be unreasonable to be kept waiting any longer for the Applicant to comply with the Directions. To this point, the Respondent submits it relied on the decision of Ms Karen O'Toole v Australian Community Support Organisation Ltd,[18] in which it was held it would be ‘unreasonable’ for the employer to waive the requirement to comply with the Direction for ‘an indefinite period’ since the worker seemed to have no ‘definite’ intention to comply.
Again, the Respondent’s submission is not without merit, given the Applicant’s statement to the Respondent on 20 December 2021 that:
Furthermore, it is my considered position that I serve myself, and my family, best if I refuse an
experimental drug with known, and unknown, toxins and rely on my good health and natural
immunity to safeguard my wellbeing.[19]
From the evidence submitted it is not apparent that the Applicant is contemplating his position regarding vaccination but rather has decided to refuse what he considers an experimental drug.
I do not grapple with the Respondent’s argument that the Applicant faces a significant hurdle in demonstrating that there was not a valid reason for his dismissal. However, s 387(a) is but one factor to consider when determining whether a dismissal was unfair, and as I do not have fulsome evidence before me with respect to the merits of the application, I consider that this factor proves to be neutral in my consideration of whether there are exceptional circumstances.
Fairness between the person and other persons in a similar position
The Deputy President in Morphett v Pearcedale Egg Farm,[20] considered this criterion and said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]
The Respondent states that 30 of its employees have had their employment terminated for refusing to comply with the Directions, and should the Commission allow the late application, it may be viewed as discrimination in favour of the Applicant compared to other unvaccinated persons in a similar position. In short, the submission is not on point and bears little relevance to that which the Commission is obliged to consider.
I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is not a relevant consideration in the circumstances of this particular matter and is therefore a neutral factor in determining whether to grant an extension of time.
Conclusion
For the above cited reasons, I am not satisfied that there are exceptional circumstances having considered those factors in s 394(3)(a) to (f) of the Act.
Consideration also turns to whether it is fair and equitable that time should be extended. I have concluded this not to be the case in light of my above findings. Accordingly, I decline to grant the Applicant an extension of time and therefore this application for an unfair dismissal remedy must be dismissed. An Order[22] to that effect issues concurrently.
DEPUTY PRESIDENT
Determined on the papers.
[1] Fair Work Act 2009 (Cth) s 394(3).
[2] Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].
[3] [2011] FWAFB 975.
[4] Ibid [15].
[5] Ibid [13].
[6] Ibid.
[7] [2018] FWCFB 901.
[8] Ibid [38].
[9] Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403, 408-9.
[10] Biliana Henderson v Hoban Recruitment Pty Ltd T/A HOBAN Recruitment[2016] FWC 5041, [10].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, [29] – [31].
[12] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[13] Howard v Medical and Aged Care Group T/A Humphries Road Medical Clinic[2018] FWC 3454, [19].
[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[15] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[16] Ibid.
[17] Floors Aucamp v Association for Christian Senior Citizens Homes Inc. [2021] FWC 6669; Ross Barry Edwards v Regal Cream Products Pty Ltd [2022] FWC 257; Isabella Stevens v Epworth Foundation [2022] FWC 593.
[18] [2022] FWC 477.
[19] Applicant’s Notice of Employment Particulars.
[20] [2015] FWC 8885.
[21] Ibid [29].
[22] PR740431.
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