Daniel Murcott v Australian Pharmaceutical Industries Ltd

[2022] FWC 770

[2022] FWC 770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Daniel Murcott
v

Australian Pharmaceutical Industries Ltd

(U2022/3175)

COMMISSIONER BISSETT MELBOURNE, 11 APRIL 2022

Application for an unfair dismissal remedy – application filed out of time – extension of time hearing – circumstances not exceptional.

1. Mr Daniel Murcott (Applicant) has made an application seeking remedy from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicant was employed by Australian Pharmaceuticals Industries Ltd (Respondent) in Victoria, most recently as a Storeperson. The Applicant’s employment was terminated with effect from 18 December 2021.

1. The FW Act requires that an application for remedy from unfair dismissal must be made within 21 days of the date the dismissal took effect unless the Commission extends that time, having found the existence of exceptional circumstances. To have made his application within time the Applicant was required to have made the application by midnight on 8 January 2022. His application was received by the Commission on 15 March 2022. It was therefore made 45 days outside the 21-day time limit imposed by the FW Act. Mr Murcott seeks an extension of time within which to make the application.

1. On 18 March 2022 I issued directions to enable me to determine the application for an extension of time. The Applicant complied with those directions and the Respondent filed submissions by 4 April 2022.

EXTENSION OF TIME

1. The FW Act requires that an application for unfair dismissal be made within 21 days after the effective date of dismissal. Section 394(3) of the FW Act sets out those matters to which the Commission must have regard in deciding if there are exceptional circumstances such that an extension of time might be granted. Section 394(3) states as follows:

394  Application for unfair dismissal remedy

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

1. 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.[2] Exceptional circumstances may 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.[3]

Reason for the delay

1. The Applicant was on annual leave from 16 September 2021 until 18 December 2021. In November 2021 he received two letters from the Respondent. The first letter dated 19 November 2021 advised of the Victorian Government COVID-19 Mandatory Vaccination Directions (the Directions) and the need to provide evidence of vaccination status to the Respondent before 25 November 2021. If the information was not provided the letter advised his employment status would be subject to review. The Applicant responded to this letter on 24 November 2021 in which he said he had no further information to provide the Respondent as to his vaccination status. The second letter dated 25 November 2021 noted that the required information had not been provided and said that the Respondent would have “no option but to commence finalisation of your employment with API effective from 26 November 2021.” That letter did however indicate that the Respondent would not finalise the employment until the end of the notice period.

1. The Applicant took the second letter as indicating that his working arrangements or leave without pay would be finalised after 26 November 2021. He also says that, because he was on annual leave until 18 December 2021, he assumed he was still employed. He did not otherwise consider the letter of 25 November 2021 as terminating his employment.

1. On 31 December 2021 the Applicant emailed the Respondent with a range of questions in relation to the safety of vaccines for COVID-19. He did not receive a reply and on 12 January 2022 sent further correspondence seeking confirmation of his employment status. He received confirmation on 14 January 2022 that his employment had been terminated.

1. Final payment was made to the Applicant on 18 December 2021.

1. The Applicant said that, had he been aware that his employment was terminated in December 2021, he would have “immediately contacted the Fair Work Commission”. He agrees he was aware of the 21-day period within which an application for unfair dismissal was required to be made. He was not aware that it was possible to make an application for unfair dismissal after 21 days and only became aware of this after speaking to a family member close to 15 March 2022.

1. I am satisfied that the Applicant’s employment was terminated with effect from 18 December 2021 when the notice period with respect to his employment ended and his annual leave ended. I am however also satisfied that it was not abundantly clear on the face of the letter of 25 November 2021 when the dismissal would take effect – no end date or final date of employment having been specified – such that it may not have been obvious to the Applicant as to the termination of employment date. On clarification of his employment status on 14 January 2022 the Applicant thought he was no longer eligible to make his application for unfair dismissal. On receiving advice to the contrary in March 2022 the Applicant filed his application.

1. Whether the date of dismissal was 18 December 2021 or 14 January 2022 the application for unfair dismissal was still filed late. Beyond ignorance of the ability to make an application outside the 21-day time period and seek an extension of time the Applicant offers no reason for the delay in making the application.

Whether the person became aware of the dismissal after it had taken effect

1. The Applicant says he did not become aware of his dismissal until 14 January 2022 when this was advised to him by email.

1. While I consider the Applicant took a very relaxed approach to ensuring he was aware of his employment status following receipt of the letter of 25 November 2021 and receiving his final pay on 22 December 2021 I also accept that the letter of the 25 November 2021 advising of the termination of the Applicant’s employment was not clear. It is an employer’s responsibility to ensure that its communications with employees – particularly about such important issues – are clearly communicated. In this case I do not consider this to be the case.

1. I therefore accept that the Applicant became aware of his dismissal on 14 January 2022, after the date it had taken effect.

Any action taken to dispute the dismissal

1. The Applicant took no other action beyond the lodgement of his application for unfair dismissal to dispute his dismissal. This is particularly telling in circumstances where, on his own evidence, he was aware of the dismissal on 14 January 2022 but did not make the application for unfair dismissal until 15 March 2022, two months later.

Prejudice to the employer

1. No prejudice is claimed by the employer.

The merits of the claim

1. In forming a view as to the merits of the application I must have regard to whether the limited evidence I have before me discloses a likely unfair dismissal.

1. At this stage of proceedings the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[4] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears an applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[5]

1. At the time the Applicant’s employment was terminated the Directions issued by the Victorian Government did not allow the Applicant to attend work unless he had proof of vaccination or a valid medical exemption. There is no evidence that he had either. The Applicant did not provide the Respondent with the information it required. The Applicant’s employment ultimately was terminated as he could not fulfil the inherent requirements of the job. The Applicant says that the dismissal was unfair as he could have worked in New South Wales where he says no such requirement was in place.

1. In circumstances where the Applicant could not attend the workplace and where he could not perform his role it would appear, on its face, that there is little merit in the Applicant’s claim for unfair dismissal. As to his claim that he could have been transferred to New South Wales there is nothing before the Commission which would allow any assessment of such a claim.

Fairness between the person and others in similar positions

1. While it is sometimes difficult to find an appropriate comparator for the consideration of this criterion, the Applicant is not the first person to have made his application for unfair dismissal outside the 21-day period specified in the FW Act where the reason for dismissal relates to an inability to perform the inherent requirements of a job because of a failure to provide evidence of vaccination or a valid exemption. There is nothing unique in this respect about the claim of the Applicant such that his circumstances warrant a different approach.

CONCLUSION

1. I am not satisfied that there are any exceptional circumstances such that an extension of time for the making of an application for unfair dismissal should be granted.

1. In essence the Applicant made his application late because he was not aware that he could make an application out of time and seek an extension of time within which his application might be accepted. There is no evidence that the Applicant took any steps to identify or clarify his rights in this respect. He apparently did not search the internet or contact the Fair Work Commission or any other organisation to determine what actions he could take. Further he took no steps to dispute his dismissal directly with the Respondent or otherwise. This reasoning holds even accepting that the Applicant did not become aware of his dismissal until 14 January 2022.

1. The Applicant’s reasons for the delay in making his application, ignorance of his rights and his failure to do anything to determine these rights combined with the limited merits of his claim do not, considered alone or in any combination, create exceptional circumstances.

1. The application is filed out of time and is therefore not made in accordance with the FW Act.

1. The application is dismissed. An order[6] to this effect will be issued in conjunction with the decision.

COMMISSIONER

Appearances:

The Applicant on his own behalf.

M Branagan of Thomson Greer for the Respondent.

Hearing details:

Melbourne, by telephone.
6 April 2022.

Printed by authority of the Commonwealth Government Printer

<PR740079>

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]

[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]

[3] Ibid

[4] Kyvelos v Champion Socks Pty Limited (2000) Print T2421 at [14]

[5] Haining v Deputy President Drake (1998) 87 FCR 248 at [250]

[6] PR740080.

Printed by authority of the Commonwealth Government Printer

<PR740079>