Carlo Fearn v DP World Brisbane Ltd
[2022] FWC 251
| [2022] FWC 251 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Carlo Fearn
v
DP World Brisbane Ltd
(U2021/11476)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 25 FEBRUARY 2022 |
Application for an unfair dismissal remedy
Mr Carlo Fearn (the Applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the FW Act). His employment with DP World Brisbane Ltd (the Respondent) was terminated on 17 November 2021. The Applicant was dismissed for failing to comply with directions given by the Respondent relating to a COVID – 19 Vaccination Mandate requiring that employees at its container stevedoring terminals be vaccinated against COVID – 19 or provide a medical exemption and have this certified.
Section 394(2) of the FW 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 21-day period ended at midnight on 8 December 2021. The application was made on 13 December 2021, when it was filed in the Commission, five days outside the required period. For the application to proceed, the Applicant requires that the Commission grant him a further period to make the application.
The FW Act allows the Commission to extend the period for an unfair dismissal application to be made, only if it is satisfied that there are “exceptional circumstances” taking into account matters set out in s.394(3) of the FW Act. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional factor, 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.[2]
The requirement that there be exceptional circumstances before a further period can be granted under 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 made, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Section 394(3) requires that, in considering whether 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. I now consider these matters in the context of the Application.
On 24 December 2021 I issued Directions that required the Applicant to set out in writing why he considered that his circumstances were exceptional having regard to the matters in s.394(3) of the Act and to provide any supporting evidence. The Directions also clearly explained that if a reason for the delay relied on was a medical condition, the Applicant should supply documentation such as a medical certificate or report which specifically explained why the condition prevented the Applicant from filing his application within time.
A hearing was listed by telephone at 3.00pm on Thursday 27 January 2022. The Applicant filed a written response on 6 January 2022 and gave further evidence at the hearing. At the hearing the Applicant represented himself. Mr S Crilly of Seyfarth Shaw appeared for the Respondent with permission of the Commission, which was not opposed by the Applicant.
The Applicant states the reason for the delay is that following his dismissal he has been dealing with stress, anxiety, sleeplessness, loss of appetite, and has been concerned about supporting his family and making ends meet. The Applicant also said he was not aware of the 21 – day timeframe and had not considered making an application to the Commission because he was involved in other court proceedings. The Applicant was also involved in other court action which did not proceed. The Applicant is not sure exactly when he learnt that the court action was not proceeding but said that he then found out about making an unfair dismissal application “later down the track”. In response to a question from me at the hearing, the Applicant said he learnt that the court action was not proceeding at some point after he had been dismissed.
The Respondent submitted that lawyers acting on behalf of the Applicant and other employees were seeking an interlocutory injunction preventing their dismissal which was dismissed on 16 November 2021 (the day before the Applicant was dismissed) and that the court proceedings were discontinued formally on 20 November 2021.
The Applicant also said his dismissal has put a lot of pressure on his personal life, he had been arguing with his partner, and had no help in submitting his claim. Further, the Applicant said that he does not have much knowledge of computers and lacks computer skills and required help to submit the application.
In response to a proposition from me that although the Directions stated that if a medical condition was relied on as the reason for the delay, medical evidence should be provided, the Applicant agreed he had not provided such evidence and said that his cultural background as a Maori from New Zealand, meant people don’t go to doctors or seek assistance and tend to deal with things on their own.
I am not satisfied that the Applicant has provided an acceptable or reasonable explanation for the delay. It is common for employees to suffer adverse effects such as shock and trauma because of dismissal from employment and while this is unfortunate, on its own it is not a basis for a further period being granted.[3] The Applicant has produced no evidence to show he was incapacitated to the extent that he was unable to file an application within the specified time or that there were any exceptional circumstances which would justify an extension of time. It is also well established that ignorance of the 21 – day timeframe is not an exceptional circumstance. Neither is a lack of knowledge about the fact that an unfair dismissal application can be made. Similarly, a lack of knowledge of technology is also not an exceptional circumstance. I am not satisfied that any of these reasons individually, or considered together, constitute exceptional circumstances. This weighs against the grant of a further period in which to make the application.
The following matters are in my view neutral considerations. Firstly, the Applicant was notified of his dismissal on the same day that it took effect (s 394(3)(b)), and he therefore had the benefit of the full 21-day period to lodge his application. Secondly, there is no evidence of prejudice to the employer (s 394(3)(d)). I am also aware of other employees of the Respondent who have made applications outside the required time and have provided similar explanations for the delay and have not been granted a further period. It would be unfair to those persons to grant the Applicant a further period (s 394(3)(f)). This weighs against a further period being granted, albeit slightly given that while those matters raise similar issues, they are not identical.[4]
In relation to steps taken to dispute the dismissal (s 394(3)(c)) the Applicant states he took part in court proceedings with twelve other employees in relation to the Respondent’s introduction of its vaccine mandate which was unsuccessful. The court proceeding were ultimately discontinued on 17 November, and the Applicant had the period from that date to 8 December to file his application. I consider that is factor also weighs against the grant of a further period in which to make the application.
As to the merits (s 394(3)(e)), while the Applicant did not make submissions addressing this consideration, the Form F2 application indicates the Applicant’s belief that the Respondent’s vaccination mandate is unlawful, that the available COVID-19 vaccines are experimental and have not undergone safeguard trials and have unknown side effects. The Applicant also stated on his application that the fact that serious adverse reaction and/ or death is listed as a possible side effect should be sufficient grounds for him to not be vaccinated and he should not be put in a position where he is made to participate in this experiment to keep his job.
An application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. In this case, the merits turn on disputed points that would need to be tested if an extension of time were granted. While noting that a number of assertions of the Applicant appear to be contrary to decisions of the Commission in other matters involving vaccination, absent specific argument in relation to these points, I consider the merits of the application to be a neutral consideration.
Having regard to the matters in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together, such that I should exercise the discretion in s.394(3) to grant a further period for the application to be made. Accordingly, I am required to dismiss the application in U2021/11476. An Order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
Mr S Crilly of Seyfarth Shaw for the Respondent.
Hearing details:
27 January.
2022.
By telephone.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [58].
[4] U2021/11583; U2022/193.
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