Grant Tuhakaraina v DP World Brisbane Ltd
[2022] FWC 267
| [2022] FWC 267 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Grant Tuhakaraina
v
DP World Brisbane Ltd
(U2022/193)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 25 FEBRUARY 2022 |
Application for an unfair dismissal remedy
Mr Grant Tuhakaraina (the Applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the FW Act). His employment with DP World Brisbane Ltd (the Respondent) was terminated on 17 November 2021. The Applicant was dismissed for failing to comply with directions given by the Respondent relating to a COVID – 19 Vaccination Mandate requiring that employees at its container stevedoring terminals be vaccinated against COVID – 19 or provide a medical exemption and have this certified.
Section 394(2) states that an unfair dismissal application must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3). The 21 – day period ended at midnight on 8 December 2021. The application was made on 5 January 2022, when it was filed in the Commission, 28 days outside the required period. For the application to proceed, the Applicant requires that the Commission grant him a further period to make the application.
The Applicant also asserts that he filed a Form F2 application for an unfair dismissal remedy on 31 December 2021, but when he contacted the Commission on 5 January 2022 he was told the Commission had no record of this. For reasons which are set out below it is unnecessary to decide this point and I note the Applicant provided no evidence of an earlier lodgement of the application on 31 December, which would have still been out of time.
The FW Act allows the Commission to extend the period for an unfair dismissal application to be made, only if it is satisfied that there are “exceptional circumstances” taking into account matters set out in s.394(3) of the FW Act. 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.[1] Exceptional circumstances may include a single exceptional factor, 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 - day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
On 6 January 2022 I issued Directions that required the Applicant to set out in writing why he considered that his circumstances were exceptional having regard to the matters in s.394(3) of the Act and to provide any supporting evidence. The Directions also clearly explained that if a reason for the delay relied on was a medical condition, the Applicant should supply documentation such as a medical certificate or report which specifically explained why the condition prevented the Applicant from filing his application within time.
A hearing was listed by telephone on 3.00pm on Thursday 27 January 2022. The Applicant filed a written response on 6 January 2022 and gave further evidence at the hearing. On 7 January 2022 the Applicant filed a medical certificate dated 27 October 2021, in support of the Applicant’s contention that he should have been exempt from having the COVID-19 vaccine. At the hearing the Applicant represented himself. Mr S Crilly of Seyfarth Shaw appeared for the Respondent with permission of the Commission, which was not opposed by the Applicant.
The Applicant states the reason for the delay is that following his dismissal he has been suffering from depression and anxiety exacerbated by work stress following his dismissal, as well as health issue. The Applicant contends he was dismissed while he was on sick leave for which he had provided a medical certificate, after undergoing a total knee replacement. The Applicant also said he was part of a group of employees who were involved in court proceedings related to the Respondent’s introduction of a mandatory vaccination policy, and that these court proceedings caused him further stress and deep depression, as well as financial hardship due to the cost.
A further reason for the delay stated by the Applicant is that the Applicant did not know he could apply to the Commission for an unfair dismissal remedy until 31 December 2021, when a friend told him about this. As stated above, the Applicant contends he filed the application on that date, but when he telephoned the Commission on 5 January 2022 seeking an update on his application, he was told the Commission had not received it and he needed to file his application again. The Applicant said he was unaware of the 21 – day timeframe. Further reasons for the delay given by the Applicant were that he had a knee operation on 26 October and was on sick leave for a period of 6 weeks, and that following his dismissal he was still experiencing pain from this. The Applicant was in hospital until 31 October 2021 and at the time of his dismissal on 17 November 2021, the Applicant was at home but still under the care of a doctor and undergoing rehabilitation on his knee.
At the hearing, the Applicant agreed to a proposition from me that although the Directions had set out that if a medical condition was relied on as the reason for the delay medical evidence should be provided, the Applicant had not provided any medical certificate or report in relation to the medical conditions he relied on as a reason for the delay. The Applicant said he did not think about making an application because of his depression and did not seek medical assistance in relation to this. The Applicant also agreed with a proposition from me that while he asserted that the reason for the delay was his knee surgery, he was also simply unaware that he could make an unfair dismissal application until a friend told him about this on 31 December 2021.
I am not satisfied that the Applicant has provided an acceptable or reasonable explanation for the delay. It is common for employees to suffer adverse effects such as shock and trauma because of dismissal from employment and this on its own, is not a basis for an extension of time being granted.[3] The Applicant has produced no evidence to show he was incapacitated to the extent that he was unable to file an application within the specified time or that there were any exceptional circumstances associated with incapacity, which would justify an extension of time. I also note the medical certificate filed with the Applicant’s response is dated 26 October 2021, and states that the Applicant has had major surgery and is “exempted” from having the covid vaccine until he is fully recovered. The certificate does not support the reasons for the delay advanced by the Applicant, that he was anxious and depressed, or establish that these conditions prevented him from filing his application within the required time.
It is well established that ignorance of the 21 - day timeframe is not an exceptional circumstance. Similarly, being unaware of the fact that an unfair dismissal application can be made, is also not exceptional. I am not satisfied that any of these reasons individually, or considered together, constitute exceptional circumstances. This weighs against the grant of a further period in which to make the application.
The following matters are in my view neutral considerations. Firstly, the Applicant was notified of his dismissal on the same day that it took effect (s 394(3)(b)), and he therefore had the benefit of the full 21-day period to lodge his application. Secondly, there is no evidence of prejudice to the employer (s 394(3)(d)). I am also aware of other employees of the Respondent who have made applications outside the required time and have provided similar explanations for the delay and have not been granted a further period. It would be unfair to those persons to grant the Applicant a further period (s 394(3)(f)). This weighs against a further period being granted, albeit slightly given that while those matters raise similar issues, they are not identical.[4]
In relation to steps taken to dispute the dismissal (s 394(3)(c)) the Applicant states he took part in court proceedings with twelve other employees in relation to the Respondent’s introduction of its vaccine mandate which was unsuccessful. The Applicant said that that at the time he thought this was the only legal avenue he had to challenge his termination. I consider that is factor also weighs against the grant of a further period in which to make the application.
As to the merits (s 394(3)(e)), while the Applicant did not make submissions addressing this consideration, the Form F2 application indicates the Applicant’s belief that the Respondent’s vaccination mandate is unlawful, that the available COVID-19 vaccines are experimental and have not undergone safeguard trials and have unknown side effects. The Applicant also stated on his application that the fact that serious adverse reaction and/ or death is listed as a possible side effect should be sufficient grounds for him to not be vaccinated and he should not be put in a position where he is made to participate in this experiment in order to keep his job.
An application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. In this case, the merits turn on disputed points that would need to be tested if an extension of time were granted. While noting that a number of assertions of the Applicant appear to be contrary to decisions of the Commission in other matters involving vaccination, absent specific argument in relation to these points, I consider the merits of the application to be a neutral consideration.
Having regard to the matters in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together, such that I should exercise the discretion in s.394(3) to grant a further period for the application to be made. Accordingly I am required to dismiss the application in U2022/193. An Order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
Mr S Crilly of Seyfarth Shaw for the Respondent.
Hearing details:
27 January.
2022.
By telephone.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Ibid
[3] Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [58].
[4] U2021/11583; U2021/11476.
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