Janer Torres v Melbourne Rotomould Rotational Moulding
[2022] FWC 5
•4 JANUARY 2022
| [2022] FWC 5 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Janer Torres
v
Melbourne Rotomould Rotational Moulding
(U2021/11045)
| COMMISSIONER O’NEILL | MELBOURNE, 4 JANUARY 2022 |
Application for an unfair dismissal remedy – effective date of dismissal – extension of time.
Mr Janer Torres has been employed by Melbourne Rotomould Rotational Moulding (MRRM) for more than 10 years.
Mr Torres was advised by MRRM that he was required to receive the COVID-19 vaccination in order to continue working from 15 October 2021 under Victorian Government mandatory vaccination requirements. Mr Torres is not vaccinated. Accordingly, he was not permitted to attend his workplace from 15 October 2021.
The applicant’s last day of work was 14 October 2021. On 1 December 2021, Mr Torres lodged an application for an unfair dismissal remedy. The application form was signed and dated 29 November 2021. Mr Torres’ response to the question ‘What date did your dismissal take effect’, was “The last day of work was 14th October, 2021.”
Section 394(2) of the Act 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).
If Mr Torres was dismissed effective 15 October 2021, the period of 21 days ended at midnight on 5 November 2021.
The question is whether additional time should be allowed for Mr Torres to make his application to the Commission.
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 the 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.
Mr Torres says that the reason for the delay was that it took some time to get clarification from MRRM about his employment status. Mr Torres applied for long service leave at the beginning of October, but this was refused on 18 October 2021. Mr Torres produced several emails that he exchanged with MRRM between 6 – 29 October 2021, seeking clarification as to whether he was being stood down, whether he was continuing to accrue his entitlements, concerning his long service leave application, and related queries. Through the emails, MRRM advised Mr Torres that he was not being stood down, there was work for him to do, and that the company wanted him to return to work, but that under government regulations, he needed to be vaccinated to do so.
Mr Torres sought legal advice concerning his situation through the Fair Work Ombudsman’s Workplace Legal Advice Program. He was referred to McInnes Wilson Lawyers on or about 15 October 2021 and spoke with a lawyer first on 21 October 2021.
In an email to MRRM on 22 October 2021, Mr Torres said: “I understand you are not putting me on long service leave and I am not being stood down. I am on unauthorised leave and you do not intend to put me on any leave; I am therefore treating this as a forced dismissal.’
Mr Torres and his daughter’s evidence was that on 17 November 2021, he was advised by the lawyer to make an unfair dismissal application. Their evidence was that neither Mr Torres nor his daughter were made aware that there was a 21-day time limit in which to make an unfair dismissal application. Further, that they only became aware of the time limit on Monday 29 November 2021 when Mr Torres’ daughter downloaded the application form from the Commission’s website. Mr Torres’ application was not lodged for a further two days, on 1 December 2021.
The explanation for this two day delay was that Mr Torres’ daughter had a full-time job and was helping her father outside working hours, and after she became aware of the time limit, she needed to make sure all the information on the form was correct, and she was only able to do this outside her own working hours.
Mr Torres’ daughter’s evidence was that she spent the time between 17 November 2021 (when her father was advised to make an unfair dismissal application) and 29 November 2021 (when she downloaded and completed, but did not lodge, the application form) compiling documents, including emails from her father’s phone, and was only able to do this outside working hours.
I am not satisfied that any of these matters are exceptional circumstances. Leaving aside the period between 15 and 21 October, it remains the case that on 22 October Mr Torres told his employer that he was treating the situation as a forced dismissal. However, he did not lodge his unfair dismissal application within 21 days of that date, which would have been by 12 November 2021.
Further, I am not satisfied that there is any reasonable explanation for the fact that the application was filed two days after it was downloaded, completed and signed on 29 November 2021. There was no reasonable explanation as to why it could not have been done on the evening of 29 or even 30 November 2021.
I am not satisfied that Mr Torres has provided an acceptable explanation for the delay and that is a matter that weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
There remains a live question whether Mr Torres has, in fact, been dismissed by MRRM. MRRM maintains that it has not dismissed him. Assuming for current purposes that Mr Torres was dismissed, he became aware of it by 22 October at the latest, when he told his employer that he was treating the situation as a forced dismissal. This may have been a more positive consideration if Mr Torres had made his application within 21 days of that date, but he did not.
Any action taken by the person to dispute the dismissal
Mr Torres sought clarification from his employer and then sought legal advice. However, he did not act promptly, and in the circumstances, I consider this to be a mildly positive consideration.
Prejudice to the employer (including prejudice caused by the delay)
There is no evidence of any prejudice to MRRM if Mr Torres is allowed additional time to bring his claim. In this case, this is a neutral consideration.
Merits of the application
Mr Torres stopped working at MRRM because he was not legally permitted to attend work because he had not received a COVID-19 vaccination, contrary to the State Government’s direction that all Authorised Workers do so by 15 October 2021. It is not possible to make any firm or detailed assessment of the merits of the applications based on the limited material before the Commission at this time. However, it is far from clear that Mr Torres has in fact been dismissed within the meaning of s.386 of the Act. It may be that Mr Torres has repudiated his employment contract with MRRM by not meeting the inherent requirements of his employment, namely the requirement as an Authorised Worker to be vaccinated.
In addition, the lawfulness or impact of the State Government directions are not challenged by the Applicant, rather he considers the dismissal to be unfair because he contends that his employer did not follow fair and correct processes to terminate his employment.
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 Mr Torres 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, all but one of the considerations I must consider weigh against an additional period of time being granted. On balance, I am not satisfied that there are exceptional circumstances in this case.
As discussed above, I can only allow additional time for the applicant to make his application if there are exceptional circumstances. As there are none, no additional time can be allowed. This means that Mr Torres 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:
J Torres and A Torres for the Applicant
T Leed for the Respondent
Hearing details:
2021
Melbourne (by MS Teams)
23 December 2021
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
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