Battigelli v Respiratory West Pty Ltd

In the case of Battigelli v Respiratory West Pty Ltd, the Applicant, who had been employed by the Respondent as a Medical Secretary, sought relief from the Fair Work Commission for an alleged unfair dismissal. The Applicant had been stood down from her employment on 4 November 2021 after she failed to disclose her COVID-19 vaccination status to the Respondent by the specified deadline. The Respondent subsequently terminated the Applicant's employment on 8 November 2021. The Applicant applied for an extension of time to lodge her unfair dismissal application, citing exceptional circumstances under section 394(2) of the Fair Work Act 2009. The central issue before the Commission was whether the Applicant's circumstances constituted 'exceptional circumstances' warranting an extension of time to lodge her unfair dismissal application.

The Commission carefully considered the statutory criteria for 'exceptional circumstances' as outlined in section 394(3) of the Act, including whether the Applicant's delay in lodging her application was due to circumstances beyond her control, whether she had acted with due diligence, and whether the delay had caused any prejudice to the Respondent. While the Applicant argued that her failure to disclose her vaccination status was due to a medical condition that prevented her from being vaccinated, the Commission found that this did not constitute exceptional circumstances. The Commission also noted that the Applicant had ample opportunity to disclose her vaccination status and that her failure to do so was within her control. Consequently, the Commission was not satisfied that the Applicant's circumstances were exceptional and dismissed her application for an extension of time. As a result, the Applicant's unfair dismissal application was also dismissed.

The Fair Work Commission dismissed the Applicant's application for an extension of time to lodge her unfair dismissal application and consequently dismissed the unfair dismissal application itself. An Order will be issued in accordance with this decision.