Bridgette Perone v Momilade Family Trust & Ajao Family Trust & Dhaliwal Family Trust T/A Lincoln Medical Centre
[2022] FWC 472
| [2022] FWC 472 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Bridgette Perone
v
Momilade Family Trust & AJAO Family Trust & Dhaliwal Family Trust T/A Lincoln Medical Centre
(U2022/1549)
| COMMISSIONER HAMPTON | ADELAIDE, 23 MARCH 2022 |
Application for an unfair dismissal remedy – extension of time required – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.
What this decision is about
This decision concerns an application by Ms Bridgette Perone (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). In particular, the Applicant requires an extension of time in which to lodge the application. Ms Perone is seeking reinstatement, or in the alternative compensation, for what she contends is her unfair dismissal by her former employer Momilade Family Trust & AJAO Family Trust & Dhaliwal Family Trust trading as Lincoln Medical Centre (Respondent or Lincoln Medical Centre). The Respondent conducts a private medical practice in Port Lincoln and has 3 “Partners”; Dr Sam Olaiya, Dr Kay Ajao and Dr Ray Dhaliwal. Each of whom also operate as General Practitioners in the medical centre.
The dismissal took place in the context of the Respondent’s position that an Emergency Management (Healthcare Setting Worker Vaccination (COVID-19) Direction[1] (Direction) applied to the workplace and required, in effect, that Ms Perone be vaccinated or have a medical exemption in order to continue her employment. Ms Perone was not vaccinated and did not hold a medical exemption at that time but was seeking to either work from home or take extended leave to enable her to access a vaccine that was not yet available.
The application was lodged with the Commission on 4 February 2022. There is a dispute about when the dismissal took effect and whether any uncertainty associated with its communication provides an explanation for the timing of the application. Ms Perone’s application has proceeded on the contention that it was (and remains) unclear when her dismissal took effect and that this uncertainty, and some other factors, led to delays in the filing of this application. The Respondent contends that the dismissal took effect on 24 December 2021, when the dismissal was communicated by letter to Ms Perone, and opposes an extension of time being granted.
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). An extension of time is required; however, the magnitude of the extension required is in dispute. For reasons that will be outlined below, I have concluded that the dismissal was effective on 24 December 2021. Adopting that date as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 14 January 2022.[2] The application was therefore filed 21 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) of the Act. The Act allows the Commission to extend the time period within which an unfair dismissal application where it is satisfied that there are exceptional circumstances.[3]
The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Permission was granted to both parties to be represented by a Lawyer having regard to s.596 of the Act.
Ms Perone provided a witness statement[4] and gave sworn evidence on her own behalf. Comprehensive written submissions on behalf of Lincoln Medical Centre, were also provided to the Commission. The Respondent did not lead evidence but cross-examined Ms Perone and relied upon the significant documentary evidence before the Commission.
As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that in the absence of exceptional circumstances an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
I found the Applicant’s evidence to have been given honestly as to the facts, however her explanation about the significance and meaning of the correspondence from the Respondent at various stages was somewhat naive and not convincing. For example, whilst Ms Perone indicated at one point that she ”sort of” and “I did and I didn’t”[5] consider that the letter of 24 December 2021 was a dismissal, it is evident to me that her unwillingness to recognise that as a dismissal was due for the most part to her hope that this would be reversed given certain assurances she had been given by 2 of the 3 Doctors and the absence of information about the change in annual leave calculations. Her later evidence[6] that she “100%” considered that she was employed as at 7 January 2022, was unconvincing. I will return to these aspects shortly.
The Respondent did not lead evidence and the facts associated with this matter provided by Ms Perone, as opposed to the implications of those events, is largely unchallenged.
The immediate sequence of events and the timing of the dismissal
Ms Perone was employed by Lincoln Medical Centre in the position of Practice Manager from May 2007 until December 2021. At the time of the events leading to this application, this was a part-time position and involved 34 hours per week. The duties of the role included:
· Oversight of the administration of the medical practice including the staff.
· Processing wages for the Partners, and other Doctors and in conjunction with the Administration Manager, wages for the other staff.
· Reconciliations for Medicare claims and contracts for contracted Doctors.
· Handle applications for placements, inductions and billings for registrars and medical students.
· Dealing with client grievances or disputes.
· Dealing with regulatory and Government agencies, such as SA Pathology.
Ms Perone’s continuing employment with Lincoln Medical Centre was impacted by the apparent impact of the Emergency Management (Healthcare Setting Workers Vaccination No 2) (COVID 19) Directive 2021 mandating that all employees in a “Healthcare setting” must be double vaccinated with an approved Covid vaccine, or have evidence of a booking of a second dose of an approved vaccine, or hold an appropriate medical exemption, by 8 November 2021. I observe that at the time, the Lincoln Medical Centre incorrectly understood that it was unable to retain an unvaccinated employee in its employment. I will return to this aspect as part of the consideration of the merit of the application. Ms Perone was unwilling to receive the vaccines that were approved and available due to concerns associated with what she described as, in effect, a family medical condition and instead indicated her intention to wait for the Novavax vaccine that was at the time not approved for use in Australia.
The potential impact of the Direction was the subject of an informal discussion between Ms Perone and Dr Dhaliwal on 7 October 2021 in the context of an earlier version of that instrument. In that discussion, Ms Perone stated that she was not vaccinated and Dr Dhaliwal indicated that “you had better start training someone up for your role …..”[7] A more formal discussion was conducted on 21 October 2021 between the Applicant and Drs Dhaliwal and Ajao. Ms Perone advised that she was waiting for the Novavax vaccine and suggested that she could work from home or take annual leave. These proposals were rejected by Dr Dhaliwal and Ms Perone indicated that she had been advised that there were no reasons why she could not work (unvaccinated) from home and the Respondent would need good reasons not to approve her annual leave. Ms Perone advised the Respondent that this was based upon information received from “Fair Work”. Dr Kay advised that the Respondent could grant annual leave on the condition that Ms Perone remain available to assist the employee who would take over the Practice Manager role.
At some point prior to the letter outlined below, the Applicant was informed by both Drs Olaiya and Ajao, that she would not lose her job as a result of the desire to wait for the Novavax vaccine. I also find on the balance of probabilities that during one of these discussions, the likely timing of the availability of the Novavax vaccine was discussed.
The Respondent wrote to Ms Perone in relation to the Direction on 28 October 2022 in the following terms:
“… …
Re: Emergency Management (Healthcare Setting Workers Vaccination No 2) (COVID-19) Direction 2021 (20th October 2021)
We refer to the above directions that were released last week and our discussion with you on Thursday 21s t October 2021.
We are disappointed that you have elected not to be vaccinated and hence will not comply with the new direction which takes effect from the 8th November 2021. We understand that it is your choice but as a result you will no longer be able to enter the premises as an employee and will have to cease your duties as a practice manager.
From the discussion we had last week, we are yet to receive the job role/duties that you were supposed to prepare and also not received the information you obtained from Fairwork SA regarding your leave entitlement.
Taking everything into consideration which includes your valuable service to LMC over the years as well as your promise that you will get vaccinated, we have decided to honour your annual leave from 8th November 2021 up to your entitlement, which you will be notified of once it has been confirmed. However due to the magnitude of work that is involved in being a practice manager. we are hoping that you will be available by phone or e-mail, to guide the girls who are going to do your job while you are away.
In the event you get vaccinated during the time you arc on annual leave and arc keen to return to work, we will gladly accept that. However, in the event you are not vaccinated by the time your annual leave runs out, you will not be able to continue working here.
Nonetheless as a goodwill measure, should you get vaccinated down the line and are keen to return to this job, we will be willing to accommodate you subject to the workforce situation at that time.
Finally, we would like to thank you for you for everything you have done for LMC in the past. It is highly appreciated and will always be valued. We sincerely hope this is not a permanent goodbye.
With warm regards,
… …”[8]
I observe that this correspondence raised the notions that included:
· If Ms Perone became vaccinated during her period of leave this would be accepted;
· If not vaccinated by the end of the leave period, Ms Perone “will not be able to continue working here”;
· As a goodwill gesture, if later “down the line” Ms Perone gets vaccinated and is keen to work with the Respondent, we “will be willing to accommodate you subject to the workforce situation at the time;
· Thanks you for your contribution which will always be valued; and
· We hope that this is not a “permanent goodbye”.
This sets much of the context for the later events. It was not a dismissal but foreshadowed in what circumstances a dismissal may well occur.
On 29 October 2021, Ms Perone spoke to Dr Dhaliwal and reaffirmed her concerns about the vaccines available at the time.
Ms Perone commenced annual leave on 4 November 2021. About 2 weeks into the annual leave, Dr Ajao spoke to Ms Perone about access to, or the location of, certain work emails.
On 3 December 2021, Ms Perone sought a copy of her payslip from the Respondent in order to ascertain how many hours of annual leave she had remaining to calculate when the period of leave would conclude. The payslip provided[9] indicated that the remaining entitlement was 127.88 hours and Ms Perone calculated that this leave, plus additional applicable public holidays would cover her into the New Year.
On 6 December 2021, Ms Perone unsuccessfully sought that the annual leave be taken at a lower rate of weekly hours to gain more time for the Novavax vaccine to be approved.
As some point in December 2021 - Ms Perone was informed[10] that this occurred on 14 December - the Respondent became aware that the leave accumulation figure provided to Ms Perone earlier that month on the payslip, was incorrect and her annual leave would conclude on 21 December 2021. The Respondent did not advise Mr Perone of this change or discuss with her the implications in terms of the vaccination requirements.
On 24 December 2021, Lincoln Medical Centre advised Ms Perone in the following terms:
“… …
Re: Emergency Management (Healthcare Setting Workers Vaccination No 2) (COVID-19) Direction 2021(20th October 2021)
We refer to the above directions that were released in October and our letter to you dated 28/10/2021.
So far we have yet to hear from you regarding your vaccination status or plans. Unfortunately, as per the mentioned directions and since your annual leave entitlement is now exhausted you are now not able to work at LMC. I have attached the annual leave entitlements and payments with this letter.
Should you be interested to return to the work force at LMC (once you are fully vaccinated against Covid-19), you will need to reapply and your application will be duly assessed.
We would appreciate it if you could make arrangements for the LMC laptop and the clinic keys to be returned and any other documents that you might have in your possession, including user names and passwords that belong to LMC.
Finally, we would like to thank you for you for everything you have done for LMC in the past. It is highly appreciated and will always be valued. We sincerely wish you all the best for the future.
With warm regards,.
… …”.[11]:
The attachment provided with this letter indicated that the annual leave had been exhausted on 21 December 2021.
I observe that the 24 December letter referenced the earlier October correspondence and stated, amongst other matters stated in effect:
· The leave has now been exhausted;
· The Respondent has not heard from Ms Perone about becoming vaccinated and as a result, she was now “not able to work at LMC”;
· Should you be interested to return to workforce and be fully vaccinated against Covid- 19 you will need to “reapply and your application will be duly assessed”;
· Please return laptop, keys, documents, usernames and passwords that belong to LMC; and
· Thank you for your contribution, which will always be valued, and we sincerely wish you all the best for the future.
I find that objectively, this indicated that the Applicant’s employment with Lincoln Medical Centre was at an end.
On 26 December 2021, Ms Perone emailed the Respondent in the following terms:
“… …
Kay, Raj, Sam
Hope you all had a great Xmas. I have just seen the email regarding my annual leave. I called Nicole on the 30th Nov 21 to email me the payslip so I could see how many hours of leave I had remaining at that point and my payslip showed 127 hours which I calculated to take my leave to after the new year. So this is why there has been no contact. The calculations attached are very different to my payslips and if there has been any adjustments then I should of been notified. A phone call would of been nice instead of an email sent on Xmas eve. I will forward you a copy of my payslip that was sent to me.
I will return the laptop and key as soon as I get back from camping and in regards to the documents I have never had any LMC documents at my home and all security passwords are on the desktop in a folder named Staff ID or Staff Security. I have worked with you all for 16 years and have never stolen a dollar or any documents. I'm on leave for wanting to have the Novavax not for theft. I am devastated that I'm being treated like a criminal.
Regards Bridgette”[12]
On 27 December 2021, Ms Perone spoke to Dr Ajao and explained that she should have been notified of the discrepancy in the annual leave, sought clarification as to the nature of the passwords sought by the most recent correspondence and requested that she be able to take leave with no pay to provide more time. Ms Perone was informed that this request would be raised with the other 2 Doctors. No response was provided at that time and Ms Perone was not informed at any time that any leave without pay had been approved.
On 7 January 2022, the following text exchange took place between Ms Perone and the Respondent’s Administration Manager in the context and an earlier discussion seeking a response to the unpaid leave request:
“Fri, 7 Jan, 7:28am
Ms Perone:Morning Kay just touching base to see if you have spoken to Sam or Raj about our discussion.
Dr Kay: Yes I have and tried contacting you twice. Bottom line is to get your vax status up to date and we can now have a discussion.
Ms Perone:So I have been terminated and have to reapply for my job.”[13]
Later on 7 January 2022, the Respondent responded to Ms Perone in the following terms:
“… …
Re: Emergency Management (Healthcare Setting Workers Vaccination No 2) (COVID-19) Direction 2021(20th October2021)
We refer to the above directions that were released in October, our letter to you dated 28/10/2021 and 24/12/2021 and your e-mail to Kay dated 27/12/2021 and your subsequent text this morning to Kay.
We sent you the letter on the 24/12 as your leave entitlement ended on the 21st of December. We believe that you were away camping hence sent it when you got back. We also understand that there was a mistake in the payslips that caused the miscalculation of your leave but that has been rectified by Nicole with the accountants help. We have been reassured that we are accurate in your leave entitlement and that bar the mistake in the payslip you have been paid your full entitlement.
We would also like to clarify that at no time in the letter have you been accused of any misconduct or theft. We agree that you have chosen not to be get vaccinated and that is the sole reason you are unable to continue to work at LMC. We are however missing some passwords and information that were on pieces of paper next to the folders in your room. In particular the LMC Proda account details, HPI-O details, the client ID and login details for the uploading of Superfunds, the Practice Hub login details, Adelaide Uni login details for the students payments, the Proda linking code for LMC and the ANZSIC code and a couple of other logon details that are not found on the staff security folder on the desktop. We were however able to obtain all the emails that were erased on the 5th November as they go back as far as 2010 which contradicts what you said about erasing actioned e-mails on a regular basis.
With reference to your text this morning, the Directions make it clear that only Double vaccinated people can be employed, hence we are unable to continue to employ you. Your last day was more than 2 months ago and at this stage the Novavax is still not approved for use in Australia. As a business we have made arrangements and changes and have had to move on. Should you comply fully with the directions and are keen to work again at LMC, you will need to reapply for what is available at that time.
With regards,
… ...”[14]
I observe that this correspondence concludes with the following notions:
· Ms Perone had not worked for more than 2 months and the Novavax was still not approved;
· The business has made new arrangements and had to ‘move on”; and
· Should Ms Perone “comply fully” with the vaccination directions and be keen to work again at LMC, she would need to reapply for what is available at that time.
On 10 January 2022, Ms Perone sought clarification about when the discrepancy with the annual leave (between the payslip and the reconciliation provided on 24 December 2021) and was advised that this occurred on 14 December 2021.
For reference, I note that based upon the dismissal occurring on 24 December 2021, the 21-day initial period concluded on 14 January 2022.
On Friday 14 January 2022, Ms Perone provided[15] details associated with the password and other details sought by the Respondent. There was no reference to the dismissal or employment matters.
On or around 14 January 2022, Ms Perone began to seek advice and information about contesting her dismissal. At some point, the evidence of which is not before the Commission, Ms Perone spoke to her lawyers in this matter, Old Port Chambers, and subsequently instructed them to file this application.
In terms of the subsequent delay in making this application, Ms Perone indicated that at some stage during this period, she had to attend Adelaide with her daughter who needed surgery. I accept that evidence at face value, albeit with few details as to the timing of events.
On 4 February 2022, Ms Perone lodged the Form F2 unfair dismissal application with the Commission. The application stated[16] that she was notified of the dismissal, and that the dismissal took effect, by reference to the letter on 24 December 2021 however it is alleged the letter did not clearly stipulate that she had been “terminated” or “dismissed”[17].
The operation of s.394(1) of the Act, and the approach to be adopted to assessing when a dismissal takes effect for that purpose, was extensively considered by the Full Bench of the Commission in Ayub v NSW Trains[18] (Ayub). Having reviewed the approach under different statutory regimes and the present legislation, the Full Bench stated:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”
It ultimately summarised the required approach in the following terms:
“[48] … Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.
[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.
I accept that Ms Perone placed weight upon the assurances that were originally provided to her by Drs Ajao and Olaiya. This is part of the context in which the later correspondence and discussions occurred. This may have led to the somewhat optimistic assumption that despite what the correspondence had indicated, LMC would ultimately give her the job back once she was able to have the Novavax vaccine. However, when seen in the context of the earlier correspondence, the 24 December 2021 correspondence was indicating that the employment was now at an end and that any further employment would be subject to being vaccinated, an application for (re)employment and the circumstances at the time.
Although the expression “termination” or “dismissal” were not used, the 24 December 2021 correspondence objectively had that effect, and this was or should have been apparent to Ms Perone.
Despite the reference to the leave concluding on 21 December 2021, for reasons that flow from the approach in Ayub, the dismissal was effective on 24 December 2021.
This fact that the employment had concluded was made even more clear by the 7 January 2022 correspondence from the Respondent, particularly when seen in the context of the question or statement made by Ms Perone that prompted the further confirmation.
On that basis, the dismissal of Ms Perone was communicated,[19] and took effect, on 24 December 2021 and I adopt that as the date for the purposes of s.394(2) of the Act. As a result, an extension of time of 21 days is required in 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.[20] 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.[21]
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.[22] 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.[23] 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.[24]
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 an applicant has provided an explanation for the entirety or any part of the delay.[25]
Ms Perone principally relies upon the following propositions as reasons for the delay:
· There were three “termination” letters she received from the Respondent that are missing the essential components of a termination letter. That is, the letters are ambiguous in so far are as they do not provide a specific effective date of dismissal neither do they appear to unambiguously clarify her employment status:[26]
· It would have been impossible for the Applicant to know when her effective date of dismissal was and when the 21-day deadline would start; and
· Ms Perone had to attend in Adelaide with her daughter who had significant surgery.
For reasons that follow, I do not consider that Ms Perone has provided a credible or satisfactory explanation for much of the delay in making the unfair dismissal application.
I accept that Ms Perone was relying upon the earlier assurances given to her by 2 of the Doctors. However, upon receiving the 24 December 2021 letter, it should have been evident that her dismissal had, in fact, occurred. Although she was optimistic that it would be reversed, that is – reemployed when she had had the Novavax vaccine, as was made clear in the correspondence this could not be guaranteed.
I also make allowance for the fact that Ms Perone again sought that the issue of leave without pay be revisited after the 24 December 2021 letter, and that a response was promised and not provided. However, by 7 January 2021, any doubt or optimism that the dismissal would be, in effect, reversed was clearly dispelled. The explanation of the delay from that point is also lacking any details and does not include any suggestion that Ms Perone was unable to seek or act upon any advice to make an unfair dismissal application. In that regard, I have taken into account that Ms Perone understandably gave first priority to caring for her daughter at some stages in or around this period.
I would also accept that the manner and timing of the communication of the dismissal came as a shock to Mr Perone. However, this aspect does not, by itself or in combination with the other factors, demonstrate exceptional circumstances relating to the reasons for the delay.
My conclusion about the purported explanation for the delay tells 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 Perone was aware of her dismissal on 24 December 2021. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Perone did approach the Respondent after 24 December 2021 to seek that she be placed on leave without pay. This in effect, should be seen as a request to adopt that approach rather than let the dismissal stand.
Ms Perone at no point, even after the letter of 7 January 2022, took any action to directly dispute the dismissal with the employer prior to approaching her lawyers at some point later in January and ultimately lodging this application on 4 February 2022.
This consideration does not support a finding of exceptional circumstances.
Prejudice to the employer
Nothing was put the Commission in relation to this consideration.
This weighs in favour of the Applicant but I attribute it little weight in the consideration of whether there are exceptional circumstances.[27]
Merits of the application
The merits of an application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[28]
Amongst other matters, the assurances given to Ms Perone about her ongoing employment, the failure to advise her that the leave calculations previously provided were incorrect and not discussing the consequences with her prior to the termination, are solid foundations for an unfair dismissal case.
The evidence also does not permit me to determine whether the leave without pay was properly considered by the Respondent. In the context of the previous assurances, this factor may also be of assistance to Ms Perone’s case.
Further, the fact that the Respondents had an incorrect understanding of the impact of the Direction (that it could not keep the Applicant employed) also falls into that category. I would however accept that the practical import of the incorrect understanding would need to be tested by reference as to whether the Applicant could actually perform work at home given the nature of her role. This would depend upon detailed evidence not before the Commission.
In the same vein and noting that at the time of the hearing of this matter Ms Perone had not been vaccinated against Covid-19 despite the availability of the Novavax vaccine, the practical consequences of the employer’s actions, or non-actions, would need to be assessed in determining the overall fairness of the dismissal.
For present purposes it is sufficient to find that Ms Perone has an arguable, if not strong case on aspects of the merit of the unfair dismissal application depending upon the evidence ultimately provided, and this is a consideration supporting the existence of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant factor.[29] I therefore consider that this weighs mutually between the parties as a consideration of exceptional circumstances.
Conclusions
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am on balance 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), 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[30] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
J Vidanage, of Old Port Chambers with permission, on behalf of Ms Perone, the Applicant.
W Snow, of Finlaysons with permission, for Momilade Family Trust & AJAO Family Trust & Dhaliwal Family Trust, the Respondent.
Hearing details:
2022
March 8
Video Hearing.
[1] Various versions of the Direction were issued by the State Coordinator under the Emergency Management Act 2004 (SA).
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Section 394(3) of the Act.
[4] Exhibit A1.
[5] Applicant’s evidence in chief – transcript PN98.
[6] Transcript PN153.
[7] Exhibit A1.
[8] Exhibit A2.
[9] Exhibit A6.
[10] Applicants witness statement – exhibit A1 at 27.
[11] Exhibit A3.
[12] Exhibit R1.
[13] Exhibit A5.
[14] Exhibit A4.
[15] Exhibit R2.
[16] At questions 1.2 and 1.3 of the Form F2.
[17] At question 1.5 of the Form F2.
[18] [2016] FWCFB 5500.
[19] Ayub v NSW Trains[2016] FWCFB 5500.
[20] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[21] Ibid.
[22] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[23] Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[24] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[25] Ibid.
[26] Applicant’s submissions.
[27] See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 to 300.
[28] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[29] See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.
[30] PR739519.
Printed by authority of the Commonwealth Government Printer
<PR738959>
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