Donovan Christopher Scott v Vita People/Telstra - [2023] FWCFB 43

[2023] FWCFB 43

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Donovan Christopher Scott
v

Vita People/Telstra

(C2022/8190)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

SYDNEY, 24 FEBRUARY 2023

Appeal against decision [2022] FWC 2140 of Deputy President Lake at Brisbane on 11 August 2022 in matter number U2022/1621 – extension of time not granted – appeal dismissed.

Mr Donavan Scott (the Appellant) has lodged an appeal for which permission is required under s.604 of the Fair Work Act 2009 (FW Act) against a decision[1] (the Decision) of Deputy President Lake, issued on 11 August 2022. The decision concerned an application for a remedy for unfair dismissal. In that Decision, the Deputy President found that Vita People (the Respondent) had a valid reason for dismissing the Appellant, that it did so in accordance with a fair process and that the Appellant was not unfairly dismissed.[2]

An appeal filed under s.604 of the FW Act must be filed within 21 calendar days after the date of the decision being appealed, or within such further time allowed by the Commission.[3] The Decision in this matter was issued on 11 August 2022, such that the prescribed 21-day period ended on 1 September 2022. The Appellant lodged the Form F7 – Notice of Appeal on 12 December 2022, therefore making the application 102 days out of time. Accordingly, this appeal cannot proceed unless the Commission grants the Appellant an extension of time.

The matter was listed for the determination of the issues of extension of time to lodge an appeal and permission to appeal only. On 19 December 2022, directions were issued for the filing of material and the matter was listed for hearing on 10 February 2023.

For the reasons given below we decline to grant an extension of time and the appeal is therefore dismissed.

Decision under appeal

The Appellant was employed by Vita People which was acquired by Telstra in September 2021. Telstra had, at this stage, already introduced a COVID-19 Vaccination Policy (the Policy). The Policy also applied to Vita People (by then known as Fone Zone) and its employees because it is a wholly owned subsidiary of Telstra. The Policy “made vaccination mandatory for those in roles where there is a heightened risk of contracting COVID-19 due to the nature of the work and the need to be in contact with others.”[4] The Policy also allowed for employees to obtain an exemption with appropriate supporting information.

The Deputy President sets out in the Decision the chronology of events that led to the termination of the Appellant’s employment.

In October 2021 staff were reminded of the upcoming application of the Policy with a link provided to enable staff to ask questions or provide feedback. The Appellant emailed HR Administration and expressed his deep concerns about the Policy and, following a response, asked if alternative duties would be provided to unvaccinated employees. He was advised that alternative duties would be considered for employees with a valid medical…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donovan Christopher Scott v Vita People/Telstra

Details

AGLC: Donovan Christopher Scott v Vita People/Telstra [2023] FWCFB 43
Case: [2023] FWCFB 43
Decision Date: 24 FEBRUARY 2023

CaseChat Overview and Summary

Donovan Christopher Scott has appealed against the decision of Deputy President Lake at the Fair Work Commission, issued on 11 August 2022, concerning an application for a remedy for unfair dismissal. The appeal is pursuant to s.604 of the Fair Work Act 2009 (FW Act) and requires the permission of the Full Bench. The appeal was filed outside the 21-day statutory time limit and is therefore out of time. The appeal will not proceed unless the Full Bench grants an extension of time. The Full Bench heard the matter on 10 February 2023 and declined to grant an extension of time, dismissing the appeal. The Deputy President had found that Vita People (the Respondent) had a valid reason for dismissing the Appellant (the Applicant), that it did so in accordance with a fair process and that the Applicant was not unfairly dismissed. The Applicant argued that the Respondent had a valid reason for dismissing him because he was unvaccinated and the direction to be vaccinated was not lawful or reasonable. The Applicant also argued that the direction was inconsistent with the Australian Constitution and other legislation. The Deputy President rejected the Applicant’s arguments and found that the direction was lawful and reasonable. The Full Bench found that the Applicant had not identified any arguable error in the Deputy President’s decision and there was no satisfactory reason for the delay in filing the appeal. The Full Bench also found that there was no prejudice to the Respondent if an extension of time was granted. However, the Full Bench concluded that the delay in filing the appeal was significant, there was no satisfactory explanation for the delay and the appeal did not have a reasonable prospect of success. The Full Bench therefore declined to grant an extension of time and dismissed the appeal.

Orders