Jeannette Valencia v Royal Freemasons Ltd
[2021] FWC 6362
•16 NOVEMBER 2021
| [2021] FWC 6362 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeannette Valencia
v
Royal Freemasons Ltd
(U2021/9129)
COMMISSIONER CIRKOVIC | MELBOURNE, 16 NOVEMBER 2021 |
Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.
[1] Ms Jeannette Valencia, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Royal Freemasons Ltd whom I will refer to as the Respondent.
[2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
[3] Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
[4] This published decision reflects the decision I gave ex tempore on 16 November 2021 with corrections for grammatical, syntactical and any other insignificant errors.
[5] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
[6] The parties agree, and I so find, that the dismissal took effect on 17 September 2021 and the application was made on 12 October 2021, some 25 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
[7] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
[8] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901,each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
[9] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 October 2021. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287,the delay is the period commencing immediately after that time until 12 October 2021, although circumstances arising prior to that delay may be relevant to the reason for the delay.
[10] As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.
[11] As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.
[12] The Applicant acknowledged in her submissions that her application was not made within 21 days of the dismissal taking effect. The Applicant submitted that the delay was for the following reason:
• “I needed time to research what was I going to do as this is the 1st time it happened to me” 1
[13] In relation to the reason for the delay, the Respondent submitted that the reason given for the delay provided above is “not acceptable” and there were “no exceptional circumstances” for the delay.
[14] Turning to the evidence, the Applicant’s evidence was that:
• She really did not know what to do.
• She was not aware of the 21-day time limit.
• She does not understand why the statutory time limit is 21 days, why not 25 days or a month?
• She made an honest mistake.
[15] Having considered that evidence, I find that the reason for the delay was the Applicant’s unfamiliarity and ignorance of the process for seeking a remedy for unfair dismissal.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
[16] It was not in dispute, and I so find, that the Applicant was notified of the dismissal via email and letter on 16 September 2021 and that the dismissal would take effect on 17 September 2021. 2 The Applicant therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
[17] The Applicant alleges that she took action to dispute the dismissal in the form of an email to the Respondent on 17 September 2021.
[18] Having regard to the evidence, I find that the Applicant took action to dispute the dismissal by emailing the Respondent and advising that she had booked an appointment with her GP on 12 October 2021 for a Pfizer vaccine and that she would book anything earlier if it became available.
[19] The Respondent submits that as at the time of the hearing, it had not received any documentary evidence of the Applicant’s COVID vaccination status.
[20] In all the circumstances, I find the Applicant took some action to dispute the dismissal.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
[21] The Respondent submits that it would suffer prejudice in the form of having to expend extra resources and effort to address the matter with the Applicant if an extension of time were granted.
[22] The Applicant makes no submission with respect to the question of unfairness towards her employer if an extension of time was granted.
[23] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
I will now turn to the merits of the application
[24] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
[25] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. Essentially, the crux of the dispute relates to the Applicant’s failure to comply with the Respondent’s request that the Applicant receive at least the first dose of the COVID-19 vaccine by 17 September 2021 in accordance with a directive from the Victorian Government. The Respondent states that it gave the Applicant ample opportunity in the form of emails and text messages to comply with the Victorian Government’s public health orders by the designated date. The Applicant alleges unfairness as to the Respondent’s approach and process for ensuring staff were vaccinated.
[26] As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
[27] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
[28] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
[29] As a Full Bench has noted in Perry v Rio Tinto Shipping at [2016] FWCFB 6963, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.” In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues” (see paragraph 19 of the decision of Deputy President Bartel in Elrifai v Demons Formwork & Construction [2011] FWA 5090).
[30] The Applicant submitted that the Commission should take into consideration fairness as between the Applicant and her colleagues with respect to termination due to the fact that “normally employer would tell you 1-4 weeks notice before the effectivity of the end of the contract.” 3
[31] With respect to the consideration of fairness, the Respondent submitted that other employees of the Respondent, who were also terminated on the same day as the Applicant, under similar circumstances, were able to lodge their applications on time.
[32] In all the circumstances, I find this a neutral consideration.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
[33] As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.
[34] Having regard the materials before me, I conclude that the reason the Applicant did not lodge her application within the 21-day statutory period was that she was not aware of the process for lodging an unfair dismissal application with the Commission.
[35] I note that mere ignorance of the statutory time limit is not an exceptional circumstance. This is made clear in the Full Bench decisions in Nulty v Blue Star Group at [2011] FWAFB 975 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.
[36] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost. 4
[37] Having regard to all of the matters at subsection 3 of section 394 of the Fair Work Act, including that the Applicant took some action to dispute the dismissal and that this criterion weighs slightly in favor of the granting of an extension of time, I am not satisfied that there are exceptional circumstances.
Conclusion
[38] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
Ms Jeannette Valencia (the Applicant)
Ms Yao Liu (for the Respondent)
Hearing details:
16 November 2021, via Microsoft Teams
Final written submissions:
Applicant: 9 November 2021
Respondent: 9 November 2021
Printed by authority of the Commonwealth Government Printer
<PR735845>
1 Question 4, Applicant Submissions dated 2 November 2021.
2 Termination of employment letter, dated 16 September 2021.
3 Question 8, Applicant’s Submissions, 2 November 2021.
4 Lidia Li v Slim Form Australia Pty Ltd[2021] FWC 619, [20].
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