Glenn Melrose v Telstra Corporation Limited
[2023] FWC 273
•31 JANUARY 2023
| [2023] FWC 273 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Glenn Melrose
v
Telstra Corporation Limited
(C2022/7835)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 JANUARY 2023 |
Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.
Mr Glenn Melrose (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Telstra Corporation Limited (the Respondent). The Applicant began his employment on 1 March 2014. The Applicant was dismissed on 3 November 2022. The application was lodged with the Commission on 25 November 2022.
By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that he lodged his application one day outside the statutory time limit. To be within time, the Applicant should have lodged his application on or before 24 November 2022.
Preliminary matters
Directions were issued for the filing of material and a hearing was listed for 10.00am on 25 January 2023. At which the Respondent sought to be represented. This was not opposed by the Applicant. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] Given the volume of evidence and submissions provided by the parties and the nuanced legal arguments involved in considering whether the Applicant’s reasons were exceptional, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the opposing party – to have the assistance of the Respondent’s legal representative. I was also satisfied that the presence of the representative would also enable the matter to be dealt with more efficiently. Accordingly, I allowed Mr Michael Tamvakologos of Seyfarth Shaw Australia to appear for the Respondent.
Was the application lodged within time?
Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.
The Applicant lodged his application on 25 November 2022. He accepts that his application was made one day outside of the 21 days required under s.366(1) of the Act.
The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made.
The Applicant’s submissions
The Applicant submits that he was terminated in contravention of several workplace rights including whilst being on extended leave due to illness. He had been on extended sick leave since 21 October 2021 and had during this period raised a s.372 matter which had been before Deputy President Saunders.
The Applicant asserts that the Respondent has deliberately confused the dismissal via the issuing of a new contract of employment which he accepted on the 9 November 2022 and this action of the Respondent confused him and this resulted in a delay to his application.
Further the Applicant is undergoing treatment from a psychiatrist for depressive disorder and anxiety. The Applicant claims that this has been caused by the Respondent and is currently the subject of a Workcover claim.
Sequence of events
On 3 November 2022, the Respondent sent the Applicant an email stating that his employment had been terminated on ‘medical grounds’.
On 9 November 2022, the Respondent issues a new employment contract. This confused the situation in the mind of the Applicant and led him to believe he was still employed by the Respondent and thus not eligible to lodge a General Protections claim involving dismissal.
On 25 November 2022, the Applicant lodged a General Protections claim involving dismissal, believing this was within the 21-day timeline.
On 6 December 2022, the Applicant received a separation payslip confirming a separation date of 3 November 2022.
The Respondent’s submissions
The Applicant was dismissed on the grounds of medical capacity on 3 November 2022, this followed a period of extended personal leave since 14 October 2021. The Respondent denies any breach of the provisions of the Act as claimed by the Applicant.
The Applicant had been dismissed due to him being unable to perform the inherent requirements of his role based upon medical evidence. He had been provided an opportunity to respond to the proposed dismissal by the Respondent. However, the information provided after consideration did not alter the outcome.
Background
In September 2021, the Respondent introduced a policy regarding vaccination for COVID-19. The policy included a process for seeking exemptions on medical grounds with appropriate supporting medical evidence.
On 14 October 2021, the Applicant was directed to comply with the Policy by having his first COVID-19 vaccination dose by 29 October 2021 and his second dose by 29 November 2021.
The Applicant indicated that he had a valid medical exemption from vaccination, but he did not consent to providing the Respondent with information to enable it to approve the exemption in accordance with the process in the Policy. After being issued with the direction, the Applicant then commenced an extended period of leave and has not attended work since 14 October 2021. He has provided medical certificates to support his absence.
The Respondent provided the Applicant with paid personal (sick) leave from 14 October 2021. The Applicant was informed that from 17 March 2022 personal leave payments would cease as he was not able to perform his role due to his refusal to comply with the Policy, and therefore, he was not entitled to paid personal leave.
The Applicant filed general protection claims and applied to the Commission for a stop
bullying order alleging that the Respondent’s failure to pay personal leave payments was discriminatory and amounted to bullying. These matters were discontinued.
The Applicant subsequently provided the Respondent with an Australian Immunization Register medical exemption form from the COVID-19 vaccination.
The temporary medical exemption applied from 20 April 2022 to 19 August 2022. The Respondent notified the Applicant that he would be required to be vaccinated in order to return to work from this date.
On 30 August 2022, the Applicant provided the Respondent with an updated medical certificate advising that he was unfit for duty until 30 September 2022. On the same day, the Applicant provided The Respondent with another Australian Immunisation Register medical exemption from the COVID-19 vaccination, which extended the exemption date until 28 December 2022. The medical reason for the exemption was redacted.
The Respondent informed the Applicant that it would not grant a further temporary medical exemption from 19 August 2022 without full disclosure of the medical reasons for the exemption so that the Respondent could make an assessment regarding his compliance with the Policy as the medical certificates provided by the Applicant did not provide any reasons for his absence or refusal to comply with the direction to be vaccinated. The Applicant refused to give consent for the Respondent to contact his general practitioner, and to respond to communications from the Respondent’s Health Management & Rehabilitation Consultant.
The Applicant was directed to attend an independent medical examination (IME). The IME report and supplementary report provided that the Applicant had a medical condition which rendered him unfit to work for six months and it was unlikely that his condition would improve in six months, such that he could return to work. The reports outlined that a reassessment of his capacity to work should be taken in six months.
The reports also provided that the Applicant’s medical condition of adjustment disorder, mixed anxiety, and depressed mood did not prevent him from receiving a COVID-19 vaccination. On 31 August 2022, the Applicant was sent a letter directing him to be vaccinated against COVID-19 following the expiry of his exemption on 19 August 2022.
The same letter also invited the Applicant to provide a response as to why his employment should not be terminated and further informed the Applicant that, depending on his response, the Respondent may have no option but to end his employment on the basis of his medical incapacity.
On 12 October 2022, The Respondent sent the Applicant a letter which provided him with a final opportunity to provide a response as to why the Respondent should not terminate his employment based on medical incapacity. Later that same day, the Applicant provided a response which stated that his illness was caused by his employment and sought a “redundancy payout” if his employment is terminated.
After considering the Applicant’s response to the 12 October letter on 3 November 2022 the Respondent terminated the Applicant’s employment based on his medical incapacity.
Consideration of whether a further period should be granted
Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[4] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[5] the Full Bench of Fair Work Australia stated that:
“[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.”
For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(2) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s.366(2) of the Act.
Consideration
Reason for the delay (s.366(2)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,[8] the Full Bench noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[9]
The Applicant asserts that there was confusion due to the new employment contract being issued. The evidence shows that the letter of offer was in fact applied to several thousand employees as part of the Respondent’s company-wide restructure requiring its employees to be moved to a different entity. A specific team undertook the change project from head office and were not involved in the events around the Applicant. The evidence shows that the Applicant was issued an advice letter on 26 October 2022 informing him of the entity change and requiring him to go online and accept the updated contract of employment in order that his employment, along with thousands of other employees would be in the appropriate employing entity. This organisation wide change was entirely disconnected to the events under consideration and the evidence produced shows the Applicant not actioning the acceptance of this updated employment contract till 9 November 2022, almost a week following his dismissal.
I find that the Applicant is seeking to use this company restructuring communication and updated letter of employment in a deceptive manner. The Applicant knew that his termination had been effected, he saw an opportunity to misdirect and obfuscate his termination by deliberately using his online email access to the Respondent’s system to accept the change of entity contract. The Applicant’s email access had been extended post his dismissal to allow for time to communicate his decisions regarding the company car and other material possessions of the Respondent.
I do not find the first argument by the Applicant persuasive in providing exceptional circumstances to allow for an extension of time.
The second circumstance put forward by the Applicant to consider an extension of time is his medical condition. Whilst providing evidence of his treatment by a psychiatrist and the condition for which he was being treated, the evidence does not indicate that the Applicant was unable to communicate to the Fair Work Commission his application. In fact, during this time the Applicant could respond to the Respondent several times via email to his show cause and to accept a change of employment conditions. That he was able to send and receive emails regarding his potential dismissal and accept a change of employment conditions indicates that he would have been able to make an application to the Commission within time. I do not find his second reason exceptional.
Based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.
Action taken to dispute the dismissal (s.366(2)(b))
The Applicant did not dispute his dismissal besides launching the application.
This factor therefore does not weigh in favour of an extension of time.
Prejudice to the employer (s.366(2)(c))
The Respondent made no submissions regarding prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[10] I consider this factor to be neutral.
Merits of the Application (s.366(2)(d))
In Kornicki v The Respondent-Network Technology Group,[11] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission “should not embark on a detailed consideration of the substantive case.”[12]
On an initial view of the evidence provided, the merits do not appear to be strong. However, without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.366(2)(e))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[13]
No other persons were provided for consideration and so I consider this to be neutral factor in my determination.
Conclusion
Having regard to all the matters that I am required to take into account under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.
I order that the application be dismissed.
DEPUTY PRESIDENT
[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19], (3).
[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48].
[4] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].
[5] [2019] FWC 25.
[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, per Gostencnik DP at [9].
[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, per Hatcher VP at [16].
[8] [2018] FWCFB 901.
[9] See: Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]–[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[11] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[12] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].
[13] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
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