Janelle Lee Walters v ESTA Emergency Services Telecommunications Authority
[2022] FWC 1671
•29 JUNE 2022
| [2022] FWC 1671 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janelle Lee Walters
v
ESTA Emergency Services Telecommunications Authority
(U2022/5508)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 29 JUNE 2022 |
Application for an unfair dismissal remedy – application filed 55 days out of time –circumstances not exceptional – extension not granted – application dismissed.
On 18 May 2022, Ms Janelle Lee Walters made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is ESTA Emergency Services Telecommunications Authority (ESTA). As it was evident from Ms Walters’ Form F2 – Unfair Dismissal Application (Form F2) that the application was not made within 21 calendar days after Ms Walters’ dismissal took effect, Ms Walters was required to seek an extension of time in which to file her unfair dismissal application.[1] I conducted a hearing on 28 June 2022 to determine whether an extension of time should be granted.
Legislation
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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.[2] Exceptional circumstances may 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 can be considered exceptional.[3]
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 Ms Walters’ application for an extension of time.
Reason for the delay – s.394(3)(a)
The Act does not specify what reason for delay might tell in favour of 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 the circumstances must be considered.[4]
A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[5] In this case it was on 3 March 2022 that Ms Walters received the letter dated 1 March 2022 informing her of the termination of her employment. Therefore, the delay required to be considered in this case is the period beyond the expiration of the prescribed 21-day period after 3 March 2022.[6] As such, the delay does not include the period from 3 March 2022 until the end of the 21-day period, which in this case ended at midnight on 24 March 2022. However, the circumstances from 3 March 2022 must be considered when assessing whether there is a credible reason for the 55-day delay in this case, or any part of that delay, beyond the 21-day period which ended at midnight on 24 March 2022.[7]
Ms Walters gave evidence that she knew about the 21-day time limit from the time she became aware of her dismissal and produced documentation that indicates she attempted to file an application with the Commission on 21 March 2022. In doing so, Ms Walters had completed a reasonably comprehensive Form F8 – General protections application involving dismissal form (Form F8) within 21 days after her dismissal took effect. It is not in dispute that the email address Ms Walters used in purporting to make application on 21 March 2022 ([email protected]) was incorrect, in that it was missing the “n” required to correctly spell “Melbourne”.[8] Ms Walters said that she did not get a “bounce back” email notifying her that this email was not successfully sent. She also said her computer is very old and she has experienced problems in sending and receiving email.
Having thought she had correctly lodged an application on 21 March 2022, Ms Walters evidently waited for some response from the Commission, but it was not until three weeks after 21 March 2022 that she first attempted to telephone the Commission and it was four weeks after 21 March 2022 before she attempted a second telephone call. As part of her Outline of Submissions Ms Walters described hanging up from the attempted telephone call on the first occasion, having been placed on hold for 40 minutes. She also recounted a similar experience on the second occasion, stating she had to disconnect due to the long waiting time.[9] Ms Walters said that she only discovered that her “initial application for Unfair Dismissal” had not been received by the Commission upon telephoning the Commission on 18 May 2022.[10] I have noted Ms Walters thereafter acted promptly and proceeded to file her unfair dismissal application on 18 May 2022.
I do not consider Ms Walters has provided an acceptable or reasonable explanation for the delay. That she made in error in typing the Commission’s email address on 21 March 2022 was her error alone and that a correct email address was required for successful delivery to occur is not an exceptional circumstance. Ms Walters’ error was compounded by her failure to follow through with her attempts to contact the Commission until 18 May 2022, and she does not appear to have taken any other adequate, early steps to learn what had happened to the email she thought she had sent on 21 March 2022. While stating she was suffering mild depression and was “not able to get off the couch most days” for the two months that followed her termination and that she was angry at what she felt was the injustice of her dismissal, Ms Walters has produced no evidence of a diagnosis of mild depression and was evidently still able to complete the reasonably comprehensive Form F8 and Form F80—Waiver of application fee that she attempted to file on 21 March 2022. Further, feelings of anger and injustice are not uncommon when a person has been dismissed.
Having regard to the evidence before me, I am not persuaded there was an acceptable or reasonable explanation for the delay and this weighs against an extension of time,
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
I am satisfied Ms Walters became aware of the dismissal on 3 March 2022 and therefore had the full period of 21 days to lodge her unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Other than attempting to lodge the Form F8 on 21 March 2022, there was no action taken by Ms Walters to dispute her dismissal after it took effect. Nonetheless, this factor weighs in favour of an extension of time.
Prejudice to the employer – s.394(3)(d)
Neither party contends there is prejudice to ESTA, including prejudice caused by the delay. ESTA submits that the mere absence of prejudice is an insufficient basis to grant an extension of time. I cannot identify any greater prejudice that would accrue to ESTA caused by the application being dealt with now than there would have been had it been made within the 21-day time period and consider this factor to be neutral in the circumstances.
Merits of the application – s.394(3)(e)
I am required to “take into account” the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
ESTA submits that there was a valid reason for Ms Walters’ dismissal. It contends Ms Walters was terminated on the basis of her inability to fulfil the inherent requirements of her role in that she was not permitted to attend work on-site because of the requirements of the COVID-19 Mandatory Vaccination (Specified Workers) Order 2022 (No. 5) (the Order) that she be either “fully vaccinated” or an “excepted person”, both of which she was not. The Order had commenced at 11.59pm on 25 February 2022 and was in operation at the time of Ms Walters’ dismissal. It purported to cover ESTA as an employer of an “emergency service worker”. It would not appear to be in contest that Ms Walters and other employees of ESTA were required to attend ESTA premises for work, that they received notification regarding the requirements imposed by the various incarnations of Directions and Orders that preceded the Order, and that they were given time to comply. ESTA submits that the dismissal of Ms Walters was procedurally sound and that the substantive merits of the unfair dismissal application of Ms Walters are weak.
It is acknowledged that Ms Walters held genuine concerns about becoming vaccinated against COVID-19 and she made a number of submissions concerning the legality of the Directions and Orders, the status of the COVID-19 vaccinations and their application to her. I do not propose to engage with these as part of the determination of this application for an extension of time, other than to observe they informed Ms Walters’ decision not to get vaccinated. In any event, the Commission, not being a court, cannot make any binding declaration about the validity of State or federal legislation[11] and I observe that the various Directions and Orders have at no stage been declared invalid by a court and were in effect at all material times. The Commission must proceed on the basis that the Directions and Orders are valid and lawful, and discharge its functions according to law.[12] The Order provided that ETSA could not permit Ms Walters to work for it outside her ordinary place of residence while she was neither “fully vaccinated” nor an “excepted person” and if it did, it would have been liable for a large financial penalty.
Ms Walters submits, however, that ESTA did not have to comply with this requirement because certain “exceptional circumstances” outlined in the Order applied. Ms Walters also challenges the validity of her termination on the basis of an assertion that she could have been stood down instead. Ms Walters further submitted that ESTA could have moved unvaccinated staff members, such as herself, to a separate room within the workplace and adopted other measures so that she could keep working. She raised issues about ESTA’s engagement with her in the period leading up to her dismissal. Ms Walters also outlined her long period of service with ESTA, with an absence of prior issues of performance or conduct.
The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[13] I am not able to form a concluded view about the merits of Ms Walters’ application because the final determination of the merits would turn on some contested points of fact which would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed and the parties would need the opportunity to fulsomely present their respective cases. I do however consider that ESTA has the stronger case based on the material before me and that Ms Walters’ appears weak. I therefore consider the merits weigh against an extension of time.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Ms Walters submits that she has less time to prepare her case when compared to other colleagues “who are also going through the Fair Work process”.[14] As to this, it is not apparent whether Mr Walters’ colleagues have also made unfair dismissal applications outside the requisite 21-day time period so I simply observe that Ms Walters has been required to apply for an extension of time due to her own late filing of her unfair dismissal application and that such applications are dealt with at an early stage because of the requirement in s.396(a) of the Act. This requirement would also apply to any colleagues who had filed applications out of time. I therefore consider this factor to be a neutral consideration.
Conclusion
Underlying Ms Walters’ application is the premise that it would be unfair and unjust if an extension of time were not granted. However, the requirement is that there be exceptional circumstances before time can be extended under s.394(3). This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.
The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, outlined reasoning also applicable for applications for extensions of time for unfair dismissal applications:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.”[15]
Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Ms Walters’ unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms J Walters on her own behalf.
Ms B Wing Shing for Emergency Services Telecommunications Authority.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
June 28.
[1] Fair Work Act 2009 (Cth), s.394(2).
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[5] Ayub v NSW Trains [2016] FWCFB 5500.
[6] Fair Work Act 2009 (Cth), s.394(2).
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[8] DCB at p.25.
[9] Exhibit A2 - DCB at p.13.
[10] Ibid.
[11] Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWCFB 112 at [26].
[12] Kathryn Marguerite Roy-Chowdhury v Ivanhoe Girls’ Grammar School T/A The Ivanhoe Girls’ Grammar School [2022] FWCFB 101 at [16].
[13] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[14] Exhibit A2 - DCB at p.15.
[15] [2018] FWCFB 901.
Printed by authority of the Commonwealth Government Printer
<PR743166>
0
0
0