Deborah Anne Cushenberry v Gundaroo Outside School Hours Care
[2022] FWC 60
•17 JANUARY 2022
| [2022] FWC 60 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deborah Anne Cushenberry
v
Gundaroo Outside School Hours Care
(U2021/11109)
| COMMISSIONER MATHESON | SYDNEY, 17 JANUARY 2022 |
Application for an unfair dismissal remedy – filed out of time – circumstances not exceptional – application dismissed.
Ms Deborah Anne Cushenberry (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Gundaroo Outside School Hours Care (Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The conference
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter (s.399 of the FW Act). A determinative conference was held on 5 January 2022 (Conference).
Permission to appear
I heard from both parties on the question of representation before the Commission.
The Applicant sought to be represented by Mr Jerry Gouw. Mr Gouw indicated that he is not a lawyer or paid agent but is the Applicant’s son-in-law. The Respondent did not object to Mr Gouw representing the Applicant.
The Respondent sought to be represented by Mr David Morphett, who is a lawyer or paid agent. Having considered the submissions of the Applicant and the Respondent, I determined that allowing the Respondent to be represented by a lawyer or paid agent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Accordingly, at the Conference, the Applicant was represented by Mr Gouw and the Respondent was represented by Mr Morphett.
Witnesses
The Applicant gave evidence on her own behalf and Ms Sarah Cushenberry, daughter of the Applicant, also gave evidence on the Applicant’s behalf.
Submissions
On 14 December 2021, the Commission issued directions to the parties. Those directions relevantly included the following provisions of the FW Act:
“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.
(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.”
The directions also included links to the Commission’s resources to assist the parties in addressing the considerations above.
The Applicant filed submissions in the Commission on 21 December 2021. The Respondent filed submissions in the Commission on 31 December 2021.
When did the dismissal take effect?
It is not in dispute and I find that the Applicant was dismissed.
The parties are in dispute about when the dismissal took effect.
In her application, the Applicant stated the dismissal took effect on 10 November 2021. However, in her submissions filed on 21 December 2021, the Applicant stated that her dismissal took effect on 11 November 2021.
In particular, the Applicant’s revised position is that the dismissal took effect on 11 November 2021 because she first became aware of her dismissal on this date at approximately 10:30am when she read an email from the Respondent notifying her of her dismissal.
The Applicant submitted that she does not check her emails regularly and made the Respondent aware of this via email on 21 October 2021. The Applicant filed a copy of an email to the Respondent dated 21 October 2021 in which she stated “I do not check my email multiple times daily and a phone call would have allowed me to respond to you yesterday”. The Applicant’s evidence was that she checks her email whenever she “thinks about it”, that she does not have good connectivity and that she does not receive notifications on her device to notify her when an email is received. Under cross examination, the Applicant gave evidence that sometimes she checks her emails daily and sometimes she will go three or four days without checking her email.
The Respondent submits that the dismissal in fact took effect on 10 November 2021, when it notified the Applicant via email. The Respondent also submitted that, during the mention and directions hearing on 16 December 2021, the Applicant admitted that she knew the application was out of time.[1]
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[2] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[3]
The Applicant sought to rely on the following paragraph in Burns v Aboriginal Legal Service of Western Australia (Inc)[4] in support of her proposition that her dismissal did not come into effect until she read her email on 11 November 2021:
“[24] As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant’s home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.”
The facts of this matter are distinguishable from those in Burns v Aboriginal Legal Service of Western Australia (Inc) including because the notice of termination was sent to the Applicant by the Respondent via email rather than by way of courier delivered letter. The email is dated 10 November 2021, as is the letter attached to it, and that letter does not purport to effect the termination from a date earlier than 10 November 2021.
The Applicant also sought to rely on the following paragraph of the Full Bench’s decision in Ayub v NSW Trains[5] in support of her proposition that her dismissal did not come into effect until she read her email on 11 November 2021:
“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:
“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99])” (references omitted).
However, the Full Bench in Ayub v NSW Trains went on to state:
“[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”[6]
Ayub v NSW Trains therefore supports the proposition that where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of the employee’s usual email address.[7] However, this presumption may be rebutted where there is evidence of circumstances that demonstrate that mere receipt of the email in the inbox did not amount to a reasonable opportunity to become aware of the dismissal.
The Applicant filed a number of emails between the Respondent and herself in the lead up to the dismissal. By way of summary, these include:
· an email from the Respondent to the Applicant dated 6 October 2021 in which the Respondent advised the Applicant that it had forwarded a statutory declaration received from the Applicant regarding her inability to wear a face mask to her doctor for verification;
· an email from the Respondent to the Applicant dated 7 October 2021 in which the Respondent advised the Applicant that it had not received a response from the Applicant’s doctor and that it would not permit the Applicant to enter the school site without wearing a mask. In that email, the Respondent requested that the Applicant follow up with the doctor and provide the verification to the Respondent as a matter of urgency;
· an email from the Applicant to the Respondent dated 11 October 2021 stating the Applicant’s position that the statutory declaration is sufficient to demonstrate her lawful exemption regarding face masks;
· an email from the Respondent to the Applicant dated 12 October 2021 indicating that, while it acknowledged receipt of the Applicant’s statutory declaration, the Respondent was concerned that the medical practitioner referenced in the statutory declaration had not verified its content. In that email, the Respondent sought that the Applicant impressed upon her doctor that an urgent response would assist all parties. The email also sought to confirm whether the Applicant was intending to be double vaccinated in relation to COVID-19 on or before 8 November 2021, noting the NSW public health order in relation to educators and staff;
· an email from the Applicant to the Respondent dated 17 October 2021 in which the Applicant indicated that she had made an appointment with her doctor on 19 October 2021 and that she would ask the doctor to confirm the medical conditions listed in the statutory declaration. In that email, the Applicant urges the Respondent to investigate and communicate to her alternative control methods;
· an email from the Respondent to the Applicant dated 20 October 2021 in which the Respondent followed up on the information requested from the Applicant’s doctor, noting the Applicant had an appointment on 19 October 2021;
· an email from the Respondent to the Applicant dated 21 October 2021, again following up on the documentation from the Applicant’s doctor in relation to the medical condition that the Applicant said prevents her from wearing a mask, indicating that the information had been requested several times and that an urgent response was required. The email also sought to clarify whether the Applicant was intending to be double vaccinated in relation to COVID-19 on or before 8 November 2021, noting the NSW public health order in relation to educators and staff;
· an email from the Applicant to the Respondent dated 21 October 2021 stating that she did not check her email multiple times daily and a phone call would have allowed her to respond to the Respondent earlier. In this email, the Applicant also raised concerns in relation to her pay, stated that the Respondent’s approach has exacerbated her anxiety and that the Applicant perceived the Respondent’s “communications over recent weeks as intimidating and a form of workplace bullying and harassment”. The email stated that the Applicant considered the “continued reference to vaccinations is rather inappropriate” and attaches a letter from the Applicant’s doctor which stated:
· the Applicant is one of the doctor’s “regular follow up patients”;
· the Applicant was following up “regarding depression and anxiety and she is on treatment for that”; and
· the Applicant “discussed few times with me about her panic attacks on wearing a mask”;
· an email from the Respondent to the Applicant dated 27 October 2021 indicating that the letter from the doctor did not satisfy the Respondent of the Applicant’s inability to wear a mask and stating that it is instead the doctor verifying what the Applicant had advised the Respondent, i.e. that the Applicant cannot wear a mask. The email stated “we cannot accept the evidence you have provided to date and the time frame you have provided it in as adequate”. The email also indicated that the Respondent would not permit the Applicant to attend the school site until she “can provide a verifiable medical exemption”, and that the Respondent would allow the Applicant to draw on her accrued annual leave from 22 October 2021 if she so wished until such time as the leave was exhausted. The email requested proof of vaccination on or before 8 November 2021, indicating that if this was not provided the Applicant is directed to attend a meeting with the Respondent on 9 November 2021 to advise on what grounds she feels her employment could continue;
· an email from the Applicant to the Respondent dated 2 November 2021 asserting that she had a valid medical exemption in relation to the NSW public health orders regarding the wearing of masks, raising concerns about her pay and foreshadowing that, if her pay concerns are not addressed by close of business on 4 November 2021, she would be commencing proceedings in the Federal Circuit Court without notice and would seek an order for pecuniary penalties;
· an email from the Respondent to the Applicant dated 9 November 2021 inviting the Applicant to provide further information in relation to the condition and requesting evidence or an explanation as to how the Applicant believed she could continue to work in an early childhood education and care facility noting the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021; and
· an email from the Respondent to the Applicant dated 10 November 2021 attaching a letter of termination.
The evidence establishes that the Applicant and Respondent were in regular email communication between 6 October 2021 and 10 November 2021 using the Applicant’s same email address. I am not persuaded that communications in this form were encumbered by concerns regarding internet or mobile connectivity or that this prevented the Applicant from accessing her emails. The Applicant’s evidence that she checks her email when she “thinks about it” does not assist her. I am satisfied that the Applicant, had she elected to check her email more frequently, would have been aware of the termination of her employment on 10 November 2021. While the Applicant might not have become aware of the termination of her employment until the morning after it was sent, I am satisfied that the Applicant had a “reasonable opportunity” to read the email and therefore apprehend her employment ended on 10 November 2021.
Having regard to the matters I have referred to above, I find that the dismissal took effect on 10 November 2021.
When was the application made?
It is not in dispute, and I so find, that the application was made on 2 December 2021.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed…does not include the day on which the dismissal took effect.”[8]
As I have found above, the dismissal took effect on 10 November 2021. The final day of the 21 day period was therefore 1 December 2021 and ended at midnight on that day. As I have found above, the application was made on 2 December 2021.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[9]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[10] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group.[11] In that matter the Full Bench held the following in relation to “exceptional circumstances”:
“[13] 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.”
I set out my consideration of each of the matters referred to in s.394(3) of the FW Act below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 December 2021. The delay is the period commencing immediately after that time until 2 December 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.[12]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[13]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[14]
The Applicant’s submissions largely focused on the Applicant’s contention that the application was made on time. Notwithstanding this, during the Conference, the Applicant submitted that she was experiencing mental health concerns in the period leading up to and since her dismissal and was facing financial hardship.
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[15]
However, each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[16]
Further, evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[17]
The Applicant gave evidence during the Conference that she had been experiencing panic attacks and “can’t function”. The Applicant also filed:
· a copy of a statutory declaration dated 16 August 2021 which was provided to the Respondent and which stated the Applicant has “been formally diagnosed with depression and anxiety” and treated for panic attacks;
· a letter from her doctor dated 19 October 2021 in which the doctor confirms that the Applicant is a regular follow up patient, was on treatment for depression and anxiety and had discussed with the doctor her panic attacks associated with wearing a mask; and
· a medical certificate dated 9 November 2021 stating that the Applicant would be receiving medical treatment for the period between 9 November 2021 to 22 November 2021 and would be unfit to continue her usual occupation.
The Applicant also filed a copy of a Centrelink medical certificate with her application which indicates that she was suffering from a major depressive episode, with the date of onset being 2 August 2021. This certificate indicates that the Applicant’s symptoms include feeling sad and low, poor energy and anhedonia and that in the doctor’s opinion she would be unfit for work/study between 18 November 2021 and 17 February 2022.
The Applicant also submitted that she had assistance from her daughter, Ms Sarah Cushenberry, and son-in law, Mr Jerry Gouw. I am satisfied that the evidence of the Applicant and Ms Sarah Cushenberry establishes that the Applicant made Ms Sarah Cushenberry aware of her dismissal on the morning of 11 November 2021 and that her son-in law Mr Gouw also became aware of the dismissal on that day. I also accept the evidence of Ms Sarah Cushenberry that the Applicant reached out for assistance as the deadline for filing was approaching and that she started assisting the Applicant with her application “a couple of days before it was sent in”.
The Applicant submitted during the Conference that Ms Sarah Cushenberry and Mr Gouw run a poultry business and had to address other matters which impacted the extent to which they could assist her in the days following her dismissal. The Applicant submitted during the Conference that she “did her absolute best to collect all the text messages” and to “put the case together” and when it became clear that time was running out, Ms Sarah Cushenberry and Mr Gouw became involved and assisted her with the “technical aspects” such as scanning and emailing the application. The Applicant also submitted during the Conference that “we believed the application was made on time” at the time of its filing and had “simply miscounted the days”. In this regard I note that the miscalculation of the required timeframe to lodge an application is not, without more, an exceptional circumstance.[18]
In relation to the reason for the delay, in its written submissions, the Respondent submitted that the Applicant had provided no explanation as to why the application was delayed.
I accept that the Applicant was experiencing mental health concerns and, while there is limited evidence of financial hardship, that she faced a range of personal difficulties following her dismissal. The Centrelink medical certificate filed with the application indicates that the Applicant was suffering from a major depressive episode and that the onset of this condition was 2 August 2021. That medical certificate deems the Applicant unfit for work/study. However, as found by Deputy President Sams in Underwood v Terra Firma Pty Ltd,[19] such a restriction does not necessarily equate to rendering an applicant incapable of lodging an unfair dismissal application. Since the stated onset of this condition, the Applicant entered into various communications with the Respondent, including numerous email communications in the lead up to the dismissal. Following the dismissal, the Applicant was in communication with the Respondent, including to secure a Centrelink separation certificate and seek the return of her personal items.
Similarly:
· the statutory declaration of the Applicant dated 16 August 2021 which was provided to the Respondent and which stated the Applicant has “been formally diagnosed with depression and anxiety” and treated for panic attacks;
· the letter from the Applicant’s doctor dated 19 October 2021 in which the doctor confirms that the Applicant is a regular follow up patient, was on treatment for depression and anxiety and discussed with the doctor her panic attacks associated with wearing a mask; and
· the medical certificate dated 9 November 2021 stating that the Applicant would be receiving medical treatment for the period between 9 November 2021 to 22 November 2021 and would be unfit to continue her usual occupation,
do not establish that the Applicant’s personal circumstances were so debilitating as to prevent her from filing her application within the 21 day timeframe.
Although I have sympathy for the Applicant’s circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal application.
Having regard to the above, the Applicant’s explanation for the delay does not weigh in favour of a finding of exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant alleges that she first became aware of the dismissal after it had taken effect.
The Applicant submitted that she first became aware of the dismissal on 11 November 2021, the morning after the dismissal came into effect on 10 November 2021, because she does not check her emails frequently. In particular, the Applicant’s evidence was that she first became aware of her dismissal between 10:30am and 11:00am on the morning of 11 November 2021 when she woke up and checked her email.
The Respondent submitted that the evidence relied on in this regard is “spurious at best” and does not explain why the application was filed out of time.
Having regard to the above, I accept the Applicant’s evidence that she first became aware of the dismissal on 11 November 2021, the day after the dismissal came into effect. I also find that this was because she chose not to access her emails before this time.
This resulted in a brief delay in the Applicant learning of her dismissal and this factor will need to be weighed with the other considerations to determine whether there are exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute her dismissal prior to making the application on 2 December 2021. During the Conference, the Applicant submitted that her mental health concerns impacted her willingness to dispute her dismissal but this should not lead to a finding that she agreed with the dismissal. The Applicant’s evidence given during the Conference was that she felt challenging her dismissal would be of limited utility, even if she was double vaccinated, because she could not wear a mask and did not believe the Respondent would revisit its decision. On 22 November 2021, the Applicant did however contact the Respondent requesting an employment separation certificate for Centrelink purposes and sought to collect her personal items.
The fact that the Applicant did not dispute her dismissal after she became aware of it weighs against the grant of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
The delay in filing the application is a delay of one day. I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. A lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[20] I attribute it little weight in the consideration of whether there are exceptional circumstances.
What are the merits of the application?
As noted above, the Applicant’s written submissions placed a strong emphasis on her contention that the application was made on time due to the Applicant becoming aware of the dismissal on 11 November 2021. Notwithstanding this, the competing contentions of the parties in relation to the merits of the application can be broadly discerned from the application and filed materials.
The letter of termination emailed to the Applicant by the Respondent on 10 November 2021 stated:
“As you are aware, under Section 4 of the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021, the Minister for health in NSW has directed that an education and care worker must not carry out relevant work on or after 8 November 2021 unless the worker has had 2 doses of a COVID-19 vaccine or, the worker has been issued with a medical certificate stating that they cannot receive a vaccine due to a proven contraindication to all available COVID-19 Vaccines.
You have failed to provide this information.
Given that you are now, by your own actions, ineligible to carry out relevant work in early childhood education and care service, the Management Committee has no option other than to terminate your employment.”
The Respondent submits that the Applicant did not provide evidence of her ability to work in compliance with the public health order, despite emails alerting her to do so, and as a result her employment was terminated. The Respondent submitted the application is “vexatious and without any likelihood of success”. During the Conference, the Respondent submitted that, even if the Commission were to find that the Applicant’s case had merit, reinstatement would not be an available option due to the operation of public health orders, absent a change in the Applicant’s circumstances.
The Applicant provides reasons as to why she says the dismissal was unfair in her application and, by way of summary, raises concerns about:
· the nature of the Respondent’s communications with her which she says have caused her mental distress and on-going psychological injury;
· non-payment of salary from 6 October 2021 which she says has caused her financial hardship and severe mental distress;
· the nature of the summary dismissal which she describes as “cruel and callous”. The Applicant states that she was not given the opportunity to discuss the issues at a meeting after 8 November 2021 as promised; and
· the dismissal occurring at a time when she was experiencing mental illness and she had given notice that she required personal leave.
During the Conference, the Applicant submitted that the Applicant’s mental health concerns “raises the issue of informed consent” in relation to vaccination. The Applicant submitted that the appropriate way forward would have been for the Respondent to “show care and compassion” and hold a meeting with the Applicant so a way forward could have been explored and that this did not occur. The Applicant also raised concerns about the manner in which the dismissal was effected, taking me to extracts of the Commission’s Unfair Dismissals Benchbook in submitting that the message of dismissal should have been conveyed personally and face to face with arrangements made for the presence of a support person. The Applicant submitted that while there was no requirement under the law to dismiss a person in a face to face manner, the authorities, including Wallace v AFS Security 24/7 Pty Ltd[21] indicate that this should occur in person.
Having heard the submissions and examined the materials filed in this matter to date, it is evident to me that the merits of the application will necessarily turn on the evidence and that, in the absence of a hearing of that evidence, it is not possible to make any firm or detailed assessment of the merits of the application.
I consider the merits to be a neutral consideration.
Fairness as between the Applicant 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 matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay;
(b) the Applicant becoming aware of the dismissal one day after it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[22] 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.[23]
I am not satisfied that the above matters considered individually point towards there being any exceptional circumstances. Further, I am not satisfied that there are exceptional circumstances after considering the above matters collectively.
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
Mr J Gouw on behalf of the Applicant.
Mr D Morphett on behalf of the Respondent.
Hearing details:
2022.
Sydney (By Video using Microsoft Teams).
January 5.
[1] Respondent, ‘Respondent’s outline of argument: objections’, filed 31 December 2021, 1h, [13].
[2] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[3] Foyster v Bunnings Group Ltd[2017] FWCFB 3923, [17].
[4] Print T3496.
[5] [2016] FWCFB 5500.
[6] Ibid, [50].
[7] Ibid.
[8] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s.36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s.40A.
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[10] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].
[11] [2011] 203 IR 1 at [13].
[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[14] Ibid, [40].
[15] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[16] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[17] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[18] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [7].
[19] [2015] FWC 1387, [10]. Note this matter was appealed with a Full Bench finding in [2015] FWCFB 3435 that the Deputy President “properly considered the medical evidence at paragraphs [7]-[12] of the Decision and found that it did not positively demonstrate the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame”, [16].
[20] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[21] [2019] FWC 4292.
[22] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[23] Ibid.
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