Gwendoline Delia Ferrara v St Vincent's Hospital Melbourne Pty Ltd
[2022] FWC 18
•6 JANUARY 2022
| [2022] FWC 18 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gwendoline Delia Ferrara
v
St Vincent’s Hospital Melbourne Pty Ltd
(U2021/11659)
| COMMISSIONER O’NEILL | MELBOURNE, 6 JANUARY 2022 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.
This is an edited version of the decision delivered ex tempore and recorded in transcript on 6 January 2022.
Mrs Gwendoline Ferrara was employed by St Vincent’s Hospital Melbourne Pty Ltd as a pathology collector for more than ten years, until her employment was terminated effective 16 November 2021.
Section 394(2) of the Fair Work Act2009 states that an application for an unfair dismissal remedy 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).
In this case, the period of 21 days ended at midnight on 7 December 2021. Mrs Ferrara’s application was lodged on 16 December. The application form was completed and signed on 13 December.
In order for the application to proceed, Mrs Ferrara requires the Commission to grant a further period of time within which to bring her application.
Extension of time
Additional time can be allowed under section 394(3) of the Fair Work Act 2009 (Cth) (Act) if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay,
· whether the person first became aware of the dismissal after it had taken effect,
· any action taken by the person to dispute the dismissal,
· prejudice to the employer (including prejudice caused by the delay),
· the merits of the application, and
· fairness as between the person and other persons in a similar position.
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify granting an extension however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[2]
Mrs Ferrara contends that she was under extreme stress for a number of reasons. There was a family crisis, involving her son, and she was fearful and in no fit state to come to an important decision about whether to be vaccinated. She had asked for long service leave to have some time to put her affairs in order, but this was not granted. This added to her stress. The applicant produced a medical certificate for 14 and 15 October 2021.
When she was dismissed on 16 November 2021, by telephone and confirmed by letter which was emailed and posted to on that day, she was highly distressed. In the phone call, Mrs Ferrara recalls being told that she would be given 5 weeks’ notice. At the time she believed that this meant that her employment termination did not take effect until 21 December, and she would then have 21 days to lodge her unfair dismissal application. When she received the letter of termination in the mail, she did not want to read it and left it for about a week until she was in a better state. Mrs Ferrara’s evidence was that “I didn’t want to open it, as I knew what it said.”
When she did read in the letter that the termination was effective from 16 November 2021, it didn’t register to her at that time to apply for an unfair dismissal. Mrs Ferrara’s evidence was that until about a week before she made the application, she didn’t know there was a time frame.
The applicant then downloaded and completed the form which she signed on Monday 13 December. It was not lodged until Thursday 16 December. Mrs Ferrara’s explanation for this further delay was that she had to ask her husband to help her scan and email it, as she wasn’t able to do it herself.
I am not satisfied that any of these matters are exceptional circumstances. Whilst I have sympathy for Mrs Ferrara and have no doubt she was under significant stress in the weeks prior to and following her employment being terminated, this is neither exceptional nor unusual. It is also not exceptional for people to have other serious difficulties in their lives. There was no medical evidence provided to establish that Mrs Ferrara was unable to or impeded from lodging an application within the time limit. The medical evidence produced relate to two days before the applicant was dismissed; and does no more than confirm that she was receiving medical care prior to her dismissal.
Similarly, the absence of knowledge about legal rights and time limits will generally not, of itself, provide a satisfactory or acceptable explanation for the delay. There is ample information available, including on the Commission’s website, which makes it clear that a person who has been dismissed must take action within a certain time period. Even when the applicant knew that there was a time limit and completed the application form on 13 December, there was a further 4 day delay before the application was lodged. I am not satisfied there was any reasonable explanation for this period.
I am not satisfied that Mrs Ferrara has provided an acceptable explanation for the delay and this weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect:
Mrs Ferrara was informed, by telephone and confirmed by email that day, that her employment had been terminated on 16 November 2021, and accordingly she had the full 21 day period to lodge her application.
Any action taken by the person to dispute the dismissal:
Other than making this application, there is no evidence of any other action taken to dispute the dismissal. I consider this a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay):
There is no evidence of any prejudice to St Vincent’s Hospital if Mrs Ferrara is allowed additional time to bring her claim. In this case, this is a neutral consideration.
Merits of the application:
Mrs Ferrara’s role appears to be covered by the COVID-19 Mandatory Vaccination (Specified Facilities) Directions of the Chief Health Officer and the Hospital was required to comply with them. Mrs Ferrara chose not to get vaccinated and was therefore not able to perform her job. In the circumstances, it does not appear to me to be a strong case on the merits, and I consider it to be a factor that is at best, a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the applicant and other persons. However, cases of this kind will generally turn on their own facts. No submissions were made by Mrs Ferrara in relation to this, and I am not aware of any case which would invoke this consideration.
Overall, I consider this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, no additional time can be allowed for Mrs Ferrara to make her application. This means that Mrs Ferrara is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
COMMISSIONER
Appearances:
G Ferrara for the Applicant
T Verrocchi and A Garcia for the Respondent
Hearing details:
2021
Melbourne (by MS Teams)
6 January 2022
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]
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