Jeremy Woolley v Hunter Valley Grammar School
[2022] FWC 407
| [2022] FWC 407 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jeremy Woolley
v
Hunter Valley Grammar School
(U2022/668)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 28 FEBRUARY 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed
Introduction
This decision concerns an application by Mr Jeremy Woolley (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
The termination of the Applicant’s employment with Hunter Valley Grammar School (Respondent) took effect on 17 December 2021. The unfair dismissal application was lodged on 11 January 2022.
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). The period of 21 days ended at midnight on 7 January 2022. The application was therefore filed four days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
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.[1] 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.[2]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) 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.
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 will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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 of the circumstances must be considered.[5]
The Applicant provided the following explanation for the delay in his unfair dismissal application:
“Business closures over the Christmas and New Year holiday period affected my ability to prepare this application within the stated 21 calendar day window. It is understood there would be no prejudice to the employer as a consequence of this submittal delay.”
During his oral evidence in support of his application for an extension of time, the Applicant expanded on these reasons for his delay and gave the following explanations:
The Applicant was dismissed on 17 December 2021. The Hunter Valley Grammar School shut down from 18 December 2021 until about 4 January 2022. In addition, the former acting principal of the school left the school on 31 December 2021. As a result, the Applicant did not believe that he could speak to anybody within the school to see if they would be willing to revisit the decision to terminate his employment.
The Applicant felt extremely stressed after his dismissal and took some time to collect his thoughts and decide what to do.
The Applicant was informed by a friend that he had 21 days to make an unfair dismissal application. The Applicant also looked at the Fair Work Commission website within about two weeks of his dismissal and saw that he had 21 days to make an unfair dismissal application. On about 27 or 28 December 2021, the Applicant started preparing his unfair dismissal application.
The Applicant found it difficult to obtain legal advice over the Christmas to New Year period. On 6 January 2022, the Applicant spoke to a lawyer by telephone. The lawyer was on holidays. The Applicant did not engage the lawyer to provide legal advice, but spoke to her about his circumstances. The Applicant gave evidence, which I accept, that the lawyer told him that she understood he had 21 days to lodge his unfair dismissal application excluding public holidays. The Applicant then calculated that he had until 11 January 2022 to lodge his unfair dismissal application. The Applicant lodged his unfair dismissal application in the Commission by email on 11 January 2022.
Having regard to all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. First, accepting (without finding) the Applicant’s belief that he did not have an opportunity to speak with any of the Respondent’s managerial employees in the period from 18 December 2021 until 4 January 2022 to see whether they would be willing to revisit the decision to terminate his employment did not provide the Applicant with an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. The Applicant had engaged in multiple communications with employees of the Respondent in the months leading up to the decision to terminate his employment. The decision was clearly communicated in writing to the Applicant. There was very little prospect of the Respondent changing its mind after it made the decision to terminate the Applicant’s employment and communicated that decision to the Applicant in writing. Secondly, I accept that the Applicant felt very stressed after his dismissal, as many employees do, but he did not adduce any medical evidence to suggest that he was incapable of preparing an unfair dismissal application in the 21 day period following his dismissal. Indeed, the Applicant gave evidence that he would have been able to lodge his unfair dismissal application by midnight on 7 January 2022 had he been told that it was required to be filed by that time. Thirdly, the difficulty the Applicant had in obtaining legal advice over the Christmas period did not provide an acceptable or reasonable explanation for the delay. It is not necessary to obtain legal advice to make an unfair dismissal application. Completing the application form is a straightforward process, which the Applicant was able to undertake himself in this case. Nor is it necessary to obtain legal advice before making a decision to commence unfair dismissal proceedings. The Applicant feels strongly about what he perceives to be the unfairness of the decision made by the Respondent to terminate his employment. He has been able to articulate those feelings both in his unfair dismissal application and during the hearing concerning his application for an extension of time. The Applicant was in a position to commence unfair dismissal proceedings against the Respondent without first obtaining advice from a lawyer. Fourthly, I do not consider that representative error has caused the delay in lodging the Applicant’s unfair dismissal application. The Applicant did not engage a lawyer to provide him with legal advice. He did not have a “representative”. He spoke to a lawyer, who was on holidays, by telephone. She gave the Applicant information as to her understanding of the time period required to make an application, including that public holidays were excluded from the calculation of the 21 day period. That information was incorrect. It was also different from the information the Applicant had received from his friend and from his own reading of the Fair Work Commission website, namely that he had 21 days after his dismissal to lodge an unfair dismissal application. In those circumstances, I do not consider that simply relying on what the Applicant was told, on the day before the 21 day period expired, by a lawyer (who he had not engaged to provide legal advice) provided the Applicant with an acceptable or reasonable explanation for the delay in filing his unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 11 January 2022 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on the day it took effect. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant did not suggest that he took any action to dispute his dismissal, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. 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. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
The Applicant was employed by the Respondent in the position of Information and Communications Technology (ICT) Manager for the Hunter Valley Grammar School.
On 23 September 2021, the New South Wales Minister for Health and Medical Research issued a public health order known as the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2021 (PHO). The PHO prohibited an education and care worker from carrying out relevant work on or after 8 November 2021 unless the worker had (a) two doses of a COVID-19 vaccine or (b) been issued with a medical contraindication certificate. The PHO defines an education and care worker as a person who carries out “relevant work”. The concept of “relevant work” is defined in the PHO to include “work at a government school or non-government school”. The Respondent operates a non-government school. Accordingly, the effect of the PHO was to prohibit the Applicant from carrying out work at the Hunter Valley Grammar School unless he was vaccinated against COVID-19 or had a medical contraindication. There is no dispute that the Applicant is not, and was not on 8 November 2021, vaccinated against COVID-19, and does not have a medical contraindication.
On 5 October 2021, the Applicant submitted written communication to the Respondent indicating that he was not intending to obtain a COVID-19 vaccination. The Respondent provided the Applicant with a period of extended leave until the end of term 4, 2021, during which the Applicant was paid annual leave and long service leave. The Applicant complains that he was forced to take annual and long service leave.
On 16 December 2021, the Respondent provided the Applicant with a show cause letter, inviting him to show cause as to why his employment should not be terminated in circumstances where he indicated that he did not intend to comply with the PHO and he could not, in the Respondent’s view, carry out the inherent requirements of his job because he could not work at the Hunter Valley Grammar School. The show cause letter refers to consultation communications with the Applicant on 30 September 2021, 5 & 14 October 2021, 2, 8 & 13 December 2021.
By letter dated 17 December 2021, the Applicant responded to the show cause letter. The Applicant contended that it was reasonably practicable for his job to be undertaken from home, and pointed to previous periods of time where he had worked from home. He also made a complaint about a lack of consultation in relation to the practicability of him working from home.
By letter dated 17 December 2021, the Respondent informed the Applicant that it had “assessed the capability for your entire role to be conducted remotely from home, and deemed it untenable due to capacity, practicality and inefficiency”. The letter also gave the following reasons for that conclusion:
“… the reasons such an arrangement is not feasible include, but are not limited to:
·All students and vaccinated staff returned to the School in November and as such ICT projects and daily requirements are conducted on-site and supported in person. A permanent working from home arrangement would be impractical and directly impact the efficiency and delivery of the ICT service to the School, students and staff.
·You hold a leadership role with responsibility for communication, collaboration and workload management of the ICT team and all ICT team members are working on-site. While some team communications may be managed remotely, overall team communication and collaboration would be negatively impacted by an extended absence of a leader on site.
·Key projects such as the implementation of the new School Management System for 2022 require collaboration and management on-site from the ICT team. There is no capacity to change the arrangement of these projects and remote management of the projects would be impractical and negatively impact efficiency and customer service.”
The letter of termination went on to inform the Applicant that he was unable to meet the inherent requirements of his role, with the result that his employment was being terminated immediately, but he would be paid four weeks’ wages in lieu of notice.
On the information presently available to the Commission, I am of the view that the merits of the Applicant’s unfair dismissal claim are relatively weak. There is no dispute that the effect of the PHO was to prohibit the Applicant from working at the Hunter Valley Grammar School from 8 November 2021. The principal point of contention is whether the Applicant could carry out his ICT Manager role remotely, from home, on an ongoing basis. The Respondent formed the view that such an arrangement was “untenable due to capacity, practicality and inefficiency”. It gave detailed reasons for that conclusion in the letter of termination. The Applicant disagrees with the Respondent’s conclusion and complains that he was not consulted about the practicability of him working from home. Although I have not heard detailed evidence about each aspect of the Applicant’s role, my assessment on the material available is that the reasons provided by the Respondent in the letter of termination as to why it was not feasible for the Applicant to work from home on an ongoing basis are persuasive and were likely to have provided the Respondent with a valid reason to terminate the Applicant’s employment. As to the Applicant’s contention that he was not consulted about the practicability of working from home, he was given multiple opportunities to communicate with the Respondent about his proposal to work from home on an ongoing basis and how it would be practicable to undertake the work required of him.
The weakness of the merits of the Applicant’s unfair dismissal application weigh against his application for an extension of time.
Fairness as between the person and other persons in a similar position
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.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and the merits of his claim are relatively weak. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Woolley, for the Applicant
Ms R Butterworth, for the Respondent
Hearing details:
2022.
Newcastle (by telephone):
February 23.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[4] 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]
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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