Graziela Casetta v Rio Tinto Limited
[2022] FWC 1584
•23 JUNE 2022
| [2022] FWC 1584 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Graziela Casetta
v
Rio Tinto Limited
(U2022/4280)
| COMMISSIONER WILLIAMS | PERTH, 23 JUNE 2022 |
Application for an unfair dismissal remedy
Ms Graziela Casetta (Ms Casetta or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Rio Tinto Limited (the Respondent).
Ms Casetta’s application says she was notified of her dismissal on 16 March 2022 and the dismissal took effect on 15 March 2022. Ms Casetta’s application was made on 11 April 2022.
The application has been made more than 21 days after the alleged dismissal took effect.
Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“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.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
Consequently, on 3 May 2022, the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Commission’s correspondence explained that if she relies on a medical condition as the reason for the delay, she should supply a medical certificate or report which specifically explains why this medical condition prevented her from making the application within time.
The Applicant provided a written response on 10 May 2022.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
In her application she explains she was unaware that an application must be made within 21 days. She says since her dismissal she has sought other avenues of redress including writing to her supervisor and superintendent.
In her response filed on 10 May 2022 to the Commission’s correspondence the applicant restates some further explanations she provided in her application for not making the application within 21 days. The applicant says that when she was terminated, she was unaware that there is an unfair dismissal process. She had spent over three months on stress leave and her emotional state at the time had been too fragile to deal with a lot of things.
The applicant explained she had no family in Australia and was having to deal with a lot of things by herself. She says an investigation was also taking place within her department after she submitted a complaint about an employee’s behaviour towards her. This had added substantial stress to her life.
The applicant says both her therapist and GP advised her to first have clear answers about in what work conditions she would go back to.
At this stage she was incapable of performing normal daily duties and because she had used all her accrued leave she was accepting unpaid leave for as long as she could take time to look after herself, get stronger and then get back to work.
She says she was not coping and still isn’t and she was not even checking her emails regularly. She said she was waiting for the respondent to send information to her GP as requested and would see how it goes from there. But the respondent did not prove the GP with any information regarding her return to work and instead they terminated her on the basis that she did not want to share her vaccination status.
The applicant says her priority and her doctor’s priority at this stage was to confirm what work conditions she was going to go back to.
The applicant says she lost nearly a week of the 21 day deadline just from not checking her emails regularly.
She says she is sorry that she was simply not coping with life and is still battling this on her own as she has no family in Australia.
Considering the reasons for the delay in this matter, firstly, it has been held on many occasions by this Commission that an applicant not being aware of the statutory timeframe of 21 days is neither an acceptable explanation for delay nor is it an exceptional circumstance.
The applicant refers in some detail to matters that occurred prior to her dismissal and her circumstances before her dismissal. These matters do not explain why her application was not made within 21 days after her dismissal.
The fact that the applicant had sought redress by contacting her supervisors and superintendent does not explain why she did not make her application within 21 days. Directly approaching these individuals was an option she chose to pursue but certainly did not prevent her making the application within time.
The applicant refers to her health generally, her being under stress and the advice of her therapist and GP.
Notwithstanding the advice from the Commission in its correspondence to her the applicant has not supplied a medical certificate or report which specifically explains why any medical condition she was suffering from prevented her from making the application within time.
A Full Bench of the Fair Work Commission in Australian Postal Corporation v Zhang[1], with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application held at [22] as follows:
“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”
Consequently, I am not satisfied that on the evidence before me that the Applicant’s state of health was itself an exceptional circumstance nor was it an acceptable reason for the delay.
None of the reasons for the delay that the Applicant has provided in her explanation are acceptable, neither do they individually nor together amount to exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of her dismissal on the day after it took effect.
Action taken to dispute dismissal
The Applicant sought redress by contacting her supervisor and superintendent.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
The termination of employment letter dated 15 March 2022 provided to the Applicant refers to directions restricting workplace access applying to Resource Industry Workers made under the Public Health Act (WA) 2016 that the Respondent says applied to the Applicant’s role.
The Respondents letter refers to requirements on the Applicant to have received two doses of Covid-19 vaccine and to provide evidence of that in order to lawfully access the workplace.
The letter says that despite requesting evidence from the Applicant to confirm that she meets these requirements she has not done so. The letter then refers to a show cause process and a decision by the Respondent to terminate her employment because the applicant was unable to lawfully attend the workplace to perform her role.
The Respondent in its Form F3 Employer response to unfair dismissal application has expanded on the reason for dismissal in detail and on the various procedural steps taken prior to the final decision to dismiss the applicant.
The application filed by the Applicant submits her dismissal was unfair for a range of reasons.
The applicant complains the respondent did not have regard for her then current medical state. The Applicant challenges the validity of the Directions on a number of grounds and argues they are not lawful and are not enforceable. The applicant argues the Directions are in conflict with Occupational Health & Safety legislation.
The applicant argued the respondent should have allowed her to work from home or stood her down with pay until the direction ceased.
The applicant submits the coercion to get vaccinated amounted to bullying by the respondent. She also complains about a lack of what she refers to as informed consent.
Most of the arguments the Applicant has put forward in her application as to why her dismissal was unfair have already been unsuccessfully argued before this Commission in numerous other similar unfair dismissal remedy applications concerning employees who have not satisfied the requirements of the Western Australian government’s various directions requiring proof of vaccinations or exemptions be provided to an employer before employees enter particular workplaces. Consequently, I view the merits of the case here as weak. The applicant is most unlikely to succeed at hearing.
Fairness as between the person and other persons in a similar position
There is no information before the Commission regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the Applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR742915] to that effect will now be issued.
[1] [2015] FWCFB 5285.
Printed by authority of the Commonwealth Government Printer
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