Deborah Marina Cook v Building Futures Pty Ltd T/A Building Futures
[2022] FWC 557
| [2022] FWC 557 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Deborah Marina Cook
v
Building Futures Pty Ltd T/A Building Futures
(U2022/1501)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 14 MARCH 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
On 4 February 2022, Mrs Deborah Cook (the Applicant) made an application to the Fair Work Commission (the 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 Building Futures Pty Ltd T/A Building Futures (the Respondent).
The Respondent has objected to the application on the ground that the application is 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 Determinative 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 determinative conference for the matter (s.399 of the FW Act). This occurred on 11 March 2022 at 11am via Video.
Witnesses
The Applicant gave evidence on her own behalf. There were no other witnesses for the Applicant. The Respondent gave evidence on her own behalf. There were no other witnesses for the Respondent.
Submissions and Evidence
The Applicant filed submissions in email form with the Commission on 21 February 2022.
On 28 February 2022, my Chambers directed the Respondent to file its Form F3 and any submissions and/or witness statements in relation to why the extension of time should or should not be granted by 4pm on Monday, 7 March 2022. On 3 March 2022, the Respondent filed its Form F3 and supporting material. Other than the limited comments made in the Respondent’s Form F3 regarding the application being made out of the 21-day time limit, no further submissions or materials were filed in relation to the jurisdictional objection at this time.
On 1 March 2022, the Applicant was invited to provide further evidence in support of her initial submissions. Further submissions were received from the Applicant’s Representative, Ms Ellie Dillmann, in email form on 3 March 2022.
The Respondent was provided with an opportunity to file material in response to the Applicant’s further evidence filed 3 March 2022 but did not do so.
On 9 March 2022, my Chambers provided the parties with the Commission’s template outline of argument forms and invited the parties to return the completed versions to my Chambers.
On 9 March 2022, the Applicant’s Representative filed brief further written submissions via email to my Chambers.
On 10 March 2022, the Applicant’s Representative filed an outline of argument with the Commission. The Respondent made submissions in reply to the Applicant’s outline of argument via email on the same day.
The Applicant’s Representative resigned as a Representative for the Applicant by email to my Chambers on 10 March 2022.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 7 January 2022.
When was the application made?
It is not in dispute, and I so find, that the application was made on 4 February 2022.
Was the Application made within 21 days after the dismissal took effect?
Given the dismissal took effect on 7 January 2022, the final day of the 21-day period was therefore 28 January 2022 and ended at midnight on that day. As I found above, the application was made on 4 February 2022.
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 section 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.[1]
I set out my consideration of each matter 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 28 January 2022. The delay is the period commencing immediately after that time until 4 February 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]
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.[3]
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.[4]
If an Applicant is able to provide a credible explanation for the entirety of the delay, this will weigh more heavily towards a finding of exceptional circumstances. Conversely, if an applicant fails to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances.[5]
Submissions
The Applicant submitted that the delay occurred due to her use of an incorrect email address. She claimed to have initially filed the application to the following email address: [email protected]. The Applicant advised that she quickly received a bounce back email and a flag popped up on her screen to let her know that the application had not been delivered. The Applicant submitted that she then refiled the application this time to the following email address: [email protected] and that she did not receive any bounce back emails so assumed it had been correctly filed.
The Applicant further submitted that she rang the Commission some 7 days after her initial attempt to file her application, to check on her application. She was advised that it had not been received and she immediately refiled the application when she became aware it had not been received.
In relation to the reason for the delay, the Respondent made no submissions.
Evidence
The Applicant’s evidence was that:
(a) The Applicant filed an application for unfair dismissal on 27 January 2022 (on the 20th day after dismissal but to the wrong email address namely [email protected]). The Applicant received a bounce back email and a pop-up warning on the bottom of her screen letting her know that the email delivery had failed.
(b) The Applicant then filed a second Application on 27 January 2022 which was also sent to an incorrect email address, this time to [email protected]. The Applicant denied receiving a bounce back email this second time. She also denied receiving a pop-up warning as she did the first time her application bounced back.
(c) During the determinative conference, I asked the Applicant to send a test email to [email protected] which she did and she noted that she received a pop up warning on the bottom of her screen letting her know that the email delivery had failed but she did not see a bounce back email. I asked the Applicant to check her junk email and she agreed that the bounce back email was there. I asked her if she checked the junk email previously to check if there was a bounce back email from the second application filed on 27 January 2022 and the Applicant admitted that she did not.
(d) The Applicant was aware of the 21-day deadline to file her application.
(e) The Applicant gave evidence that she called the Commission registry on 4 February 2022 to check on her application, after being advised by her Representative that she should have heard back from the Commission by this time. The Applicant was told no record of the application had been received. The Applicant then filed the application again on the 4 February 2022, 7 days late. The Applicant said she took 7 days to do so because that was when her Representative told her she should check on her application.
The Respondent did not dispute the Applicant’s evidence.
Findings
Having regard to the above, I find that the reason for the delay was that the Applicant filed the application to the incorrect email address and failed to follow up until 7 days later.
Having regard to the matters I have referred to above, I find that even if I were to accept that the Applicant had attempted to file an unfair dismissal application within time, I am not satisfied that the Applicant checked her junk email to determine if there was another bounce back given her admission during the determinative conference nor took any other steps to ensure her application had been filed particularly given she was aware of the 21 day deadline. Further, I am not satisfied that the Applicant has provided a reasonable explanation that would go towards exceptional circumstances for the delay between 28 January 2022 and 4 February 2022.
I find that the Applicant was notified that her second attempt at filing that application had failed (the same as occurred with her first attempt and again in her attempt during the determinative conference) yet it took the Applicant a further 7 days before she successfully lodged the application. The Applicant was aware of the timeframes for lodging her application and made no further attempt until 4 February 2022 after making enquiries to confirm its lodgment.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
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 4 February 2022.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) of the FW Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
On 30 November 2021, The Queensland Government mandated vaccinations for all workers in education and early childhood settings.
Submissions
The Applicant submits that the Commission should have particular regard to the following matters in its consideration of the merits of the application:
·The Applicant was employed by the Respondent as a Childcare Educator;
·That the Applicant’s contract with the Respondent did not provide that the Respondent could seek that the Applicant comply with a Government health mandate in order to fulfil her duties;
·That the Respondent was not entitled to seek that the Applicant be vaccinated in accordance with the Government health mandate; and
·That the Respondent failed to consult with the Applicant as to a risk assessment in regard to mandated vaccinations.
The Respondent submits that the Commission should have particular regard to the following matters in its consideration of the merits of the application:
· The Respondent’s obligations to comply with the Government health mandate;
· The process it undertook to give the Applicant an opportunity to respond which commenced with written notification on 6 December 2021 advising of the requirements, setting out the options and seeking a response;
· Further correspondence consulting with the Applicant occurred on 15 December 2021, 31 December 2021 and 6 January 2022;
· The offer of an alternative position, that would be subject to further review, that was declined by the Applicant; and
· The Respondent terminated the Applicant’s employment in writing on 7 January 2022 on the basis that the Applicant was unable to attend work in compliance with the Government Health Mandate and the Applicant was paid two weeks wages in lieu of notice.
Copies of the correspondence between the parties was provided to the Commission and this supported the submissions of both parties.
Findings
On the information presently available to the Commission, I am of the view that the merits of the Applicant’s unfair dismissal claim are relatively weak. There is no dispute that the effect of the Government Health Mandate was to prohibit the Applicant from working as a Childcare Educator from 17 December 2021 given she was unvaccinated. The Respondent offered an alternative part time position in an attempt to provide alternate employment however the Applicant wanted a fulltime position and declined the offer. The Respondent gave detailed reasons for its decision to terminate the Applicant’s employment in the letter of termination. The Applicant disagrees with the Respondent’s conclusion and complains that she was not consulted about the risk assessment conducted by the Respondent. Although I have not heard detailed evidence about each aspect of the Applicant’s role, my assessment on the material available is that the reasons provided by the Respondent in the letter of termination as to why it was not feasible for the Applicant to work from home on an ongoing basis are persuasive and were likely to have provided the Respondent with a valid reason to terminate the Applicant’s employment. As to the Applicant’s contention that she was not consulted about the risk assessment, she was given multiple opportunities to communicate with the Respondent about the situation and such a course of action would not have resulted in an exemption from the Government Health Mandate.
The weakness of the merits of the Applicant’s unfair dismissal application weigh against her application for an extension of time.
Fairness as between the Applicant and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
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, being that the Applicant filed the application to the incorrect email address and failed to follow up until 7 days later;
(b) the Applicant being aware of the dismissal at the time that 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 weak; 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.[6] 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.[7]
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 me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order [PR739273] to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Ms D Cook, Applicant
Ms V McKinnon and Mr D McKinnon, Respondent
Hearing details:
2022.
Brisbane (by video)
March 11.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Ibid (n 1).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltdt/as Richmond Oysters[2018] FWCFB 901, [40].
[5] Ibid [45].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[7] Ibid.
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