Dawn Thiart v Technology Resources Pty Limited
[2022] FWC 1340
•27 MAY 2022
| [2022] FWC 1340 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dawn Thiart
v
Technology Resources Pty Limited
(U2022/3565)
| COMMISSIONER WILLIAMS | PERTH, 27 MAY 2022 |
Application for an unfair dismissal remedy
Ms Dawn Thiart (Ms Thiart or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Technology Resources Pty Limited (the Respondent).
Ms Thiart’s application says she was notified of her dismissal on 2 March 2022 and the dismissal took effect the same day. This is confirmed by the Respondent. Ms Thiart’s application was made on 24 March 2022.
The application has been made more than 21 days after the alleged dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
Consequently, on 1 April 2022 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Commission’s correspondence explained that if she relies on a medical condition as the reason for the delay, she should supply a medical certificate or report which specifically explains why this medical condition prevented her from making the application within time.
The Applicant provided a written response on 5 April 2022 with a number of medical certificates attached.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
In her response filed following the Commission’s correspondence, with respect to evidence of exceptional circumstances the applicant says that while still employed she was off work for six weeks from 18 November 2021 through to the end of December 2021 due to burnout and stress. The applicant has provided medicals certificates covering this time period.
In October 2021 she had sought assistance through the Respondent’s employee assistance provider.
The applicant explains that on 22 March, the day before her application should have been filed to have been made within time, she became sick again and was unable to get out of bed for two days. She says this timing was unfortunate in that her application was due on Wednesday 23 March. She says this was neither a matter of ill will or prejudice to my employer nor deliberate, as she does not have control over when she gets episodes.
The applicant has provided a medical certificate from a doctor at the Ocean Reef Medical Centre dated 5 April 2022 that certifies that she “.. has a medical condition and will be unfit for work from 22 March 2022 to 23 March 2022 inclusive.
Turning to consider the Applicant’s reasons for the delay in making the application, the Applicant has provided no explanation as to how the events that transpired before her dismissal took effect delayed her making this application on time. These events are not exceptional circumstances nor acceptable reasons for the delay.
With respect to the applicant suffering from a medical condition from 22 March 2022 to 23 March 2022 inclusive, the Commission notes that notwithstanding the Commission’s explanation provided in the correspondence of 1 April 2022, the Applicant has not submitted a medical certificate which specifically explains how the Applicant’s medical condition over these days prevented her from making the application within time.
The medical certificate rather states she was unfit to work and does not satisfy the Commission that this medical condition incapacitated her to the extent that she was unable to make this application.
A Full Bench of the Fair Work Commission in Australian Postal Corporation v Zhang , with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application held at [22] as follows:
“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
Consequently, I am not satisfied that on the evidence before me that the Applicant’s state of health was itself an exceptional circumstance nor was it an acceptable reason for the delay.
None of the reasons for the delay that the Applicant has provided in her explanation are acceptable, neither do they individually nor together amount to exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of her dismissal on the day it took effect.
Action taken to dispute dismissal
The Applicant did not take any other action to dispute her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
The termination of employment letter dated 2 March 2022 provided to the Applicant refers to directions restricting workplace access applying to Resource Industry Workers made under the Public Health Act (W.A.) 2016 that the Respondent says applied to the Applicant’s role.
The Respondent’s letter refers to requirements on the Applicant to have received two doses of Covid - 19 vaccine and to provide evidence of that in order to lawfully access the workplace.
The letter says that despite requesting evidence from the Applicant to confirm that she meets these requirements she has not done so. The letter then refers to a show cause process and a decision by the Respondent to terminate her employment because the applicant was unable to lawfully attend the workplace to perform her role.
The Respondent in its Form F3 Employer response to unfair dismissal application has expanded on the reason for dismissal in detail including that the Respondent has made it a site access requirement for all of its workplaces in Western Australia that employees align with the vaccination requirements in the direction.
The application filed by the Applicant submits her dismissal was unfair because her place of work does not fall under the Resource Industry Worker directions. Her place of work is the Central Park Building which she submits does not fall under the site definition in the directions.
The Applicant also submits that no alternative solutions were offered to her to enable her to retain her employment such as relocation to another city, an alternative position, per temporarily work from home.
It is not possible in this particular matter for the Commission to form a concluded view about the merits of this application without both sides having the opportunity to fully present their cases. Consequently I view the merits of the case here as a neutral consideration when considering whether there are exceptional circumstances that support further time being allowed to make this application.
Fairness as between the person and other persons in a similar position
The applicant submits that in comparing fairness between herself and other persons in a similar position she hopes that the comparison would be limited to other persons with a similar medical condition.
There is no information before the Commission regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the Applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR742096] to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
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