Courtney Williams v Maven Dental Group Pty Ltd
[2022] FWC 480
| [2022] FWC 480 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Courtney Williams
v
Maven Dental Group Pty Ltd
(U2022/791)
| DEPUTY PRESIDENT LAKE | BRISBANE, 3 MARCH 2022 |
Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed
Courtney Williams (the Applicant) lodged an application with the Fair Work Commission (the Commission) on 14 January 2022 for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment as a dental assistant by Maven Dental Group Pty Ltd (the Respondent) about which she was notified on 3 December 2021 and which became effective on 14 December 2021. It was conceded the lodgement of the application was 30 days after the date of dismissal, being nine days outside the statutory time limit prescribed by s.394(2) of the Act.
The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 1 March 2022.
At the hearing, the Applicant represented herself and had her mother present for support. Riley Noakes, HR Business Partner, appeared for the Respondent. Also on the line was Annelies Maxwell, the Respondent’s Head of HR. The Applicant and Ms Noakes both gave evidence.
Background
The reason for the Applicant’s termination was her failure to comply with a direction by the Respondent that its employees were required to receive the COVID-19 vaccine. It is worth setting out the events leading to the Applicant’s dismissal based on the documentary evidence provided.
On 29 November 2021, the Respondent wrote to the Applicant informing her that the Queensland Chief Health Officer had issued a direction requiring all healthcare workers to be vaccinated against COVID-19. They explained that the direction had the effect of preventing health care workers from entering or working at dental practices if they have not been vaccinated. Accordingly, the Respondent could only permit her to continue to work in the practice from 15 December 2021 if she was vaccinated. At the hearing, Ms Noakes gave evidence that the introduction of the mandate had been communicated to the Respondent’s staff as early as 12 November 2021, but that correspondence had not been included in the Respondent’s evidence. The letter went on to provide that by 14 December 2021, the Applicant had to demonstrate that she had been vaccinated or otherwise provide evidence of exemption to be reviewed and assessed in line with a risk assessment or else she would not be permitted to enter the practice from 15 December 2021.
The letter also explained that if she did not intend to be vaccinated, it was likely that her employment would be terminated on the basis that she would be unable to fulfil the inherent requirements of her role (in that she would not be allowed to enter the premises). The Respondent asked that she use this consultation period to raise anything they may need to consider before a final termination decision is made. Either way, the Applicant was asked to inform the Respondent of her intentions by 1 December 2021 and, if no response was received, the Respondent would assume that she did not intend to be vaccinated or otherwise provide evidence to support an exemption and arrangements would therefore be made for the termination of her employment effective 15 December 2021.
On 30 November 2021, the Applicant wrote to the Respondent with a series of questions regarding the COVID-19 vaccination.
On 1 December 2021, the Respondent wrote to the Applicant stating that they appreciated her concerns and questions and will endeavour to provide all the facts and information for her to be able to make an informed decision on her intentions/ next steps. They indicated that the public health direction that by 15 December 2021, all people working in dental practices in Queensland had to be fully vaccinated or have a medical exemption to be assessed. The Respondent also provided a link to the Queensland Government websites for further details and suggested that the Applicant seek advice from a doctor. The Respondent asked that the Applicant let the Respondent know if she wished to extend the consultation.
On 3 December 2021, the Respondent wrote to the Applicant stating that no response having been received, the Respondent would terminate her role at the Respondent’s Maryborough premises because she could not meet the inherent requirement of her role. Accordingly, the letter stated, her final day of work would be 14 December 2021.
Should a further period be granted?
Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:
(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; and
(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 like position.
The test of “exceptional circumstances” establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [2]
Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).
Applicant’s material
The Applicant submits that she should be granted an extension of time because exceptional circumstances exist in her case, namely that:
(a)while she was able to obtain some preliminary legal advice on or around 20 December 2021, it was difficult for her to meet again with her lawyer because of the Christmas and New Year break;
(b)she had health issues as a result of the termination of her employment (though no particulars were provided);
(c)she was very stressed – financially and emotionally – and concerned about finding a new job so she could support herself;
(d)despite her inquiries on 7 January 2022, she did not receive the separation certificate until 20 January 2022. That was 37 days after her termination;
(e)prior to her termination she had raised a number of questions relating to the vaccination, thereby challenging the reason relied upon by the Respondent to terminate her employment (albeit before the actual termination); and
(f)there had been no other issues with her performance and so she is being discriminated against solely because of her decision not to get the vaccination.
Respondent’s material
The Respondent submits that the Applicant should not be granted an extension. In respect of the factors that I must consider under s.394(3) of the Act, the Respondent submits that:
(a) the Applicant had been told as early as 3 December 2021 that she would be terminated as of 14 December 2021 if she could not either provide a valid medical exemption or proof of vaccination;
(b) the Applicant provided no evidence health issues (beyond her own testimony) either to demonstrate why she could not have the vaccination or why she was delayed in lodging the application;
(c) the Respondent conducted an extensive and formal consultation process in respect of the introduction of the vaccination mandate, including by encouraging the Applicant to provide a medical exemption if she could obtain one and offering to extend the time for compliance if required. in response to that offer, the Applicant told the Respondent that she could not get a medical exemption and that she did not require more time to consider her position;
(d) the Applicant did not require the separation certificate to lodge the unfair dismissal application. The Respondent says that the delay was caused because the Respondent’s payroll staff were away over the Christmas and New Year break;
(e) the Applicant had the benefit of at least some preliminary legal advice during which she could have asked if she needed the separation certificate to lodge the application, to which the answer would have been no;
(f) the Applicant's application has limited prospects of success because the Respondent issued a lawful and reasonable direction that the Applicant had to be vaccinated, the Applicant was notified of the proposed reason for the termination at least as early as 3 December 2021, was afforded an opportunity to respond. Given the Government mandate, the Respondent considered it appropriate to terminate her employment due to her non-compliance; and
(g) fairness between the Applicant and other persons in a similar position is a neutral consideration.
Consequently, the Respondent asserts that the Applicant’s reasons for delay do not constitute exceptional circumstances and do not warrant the granting of an extension of time.
Consideration
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4]
In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [5]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]
While I understand that the Christmas and New Year period would have been busy and that the Applicant was stressed about losing her employment because of her decision not to be vaccinated and intent on finding more work, I am not satisfied that her circumstances qualify as exceptional. This factor weighs against the grant of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
The Applicant became aware of her dismissal on 3 December 2021, which became effective on 14 December 2021. This consideration weighs neutrally.
Action taken to dispute the dismissal (s.394(3)(c))
It is uncontentious that the Applicant did not take steps to dispute the dismissal until she lodged this application. That said, it must be acknowledged that the Applicant did challenge the basis for the dismissal at an earlier stage during the consultation process. This factor weighs neutrally in respect of the grant of an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[7] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group, the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission 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.” [8]
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. While most decisions of the Commission in respect of mandatory vaccination against COVID-19 have indicated that such a direction is a lawful and reasonable one for an employer to make, particularly where there is a government mandate in place in the particular industry, I have not had the benefit of the parties’ substantive submissions in respect of this case. Consequently, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may consider fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[9] Neither party made any specific submissions in respect of this factor, so I consider it to be neutral.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. It is thus not appropriate to grant an extension of time.
I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
<PR739001>
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].
[2] [2019] FWC 25.
[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].
[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].
[5] [2018] FWCFB 901 [39].
[6] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31]-[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[9] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].
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