Joachim Frederik Greyling v Piacentini & Son Pty Ltd
[2022] FWC 629
| [2022] FWC 629 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joachim Frederik Greyling
v
Piacentini & Son Pty Ltd
(U2022/802)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 28 MARCH 2022 |
Application for an unfair dismissal remedy
The issue
Mr Joachim Federick Greyling (the Applicant) applied for an unfair dismissal remedy on 15 January 2022, having been dismissed from Piacentini & Son (the Respondent) on 24 December 2021. The Respondent objected to the application on the grounds that the application was filed outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.
The Respondent, a contractor to a mine site, submitted that during October and November 2021, it had consulted the Applicant through pre-starts and other discussions about the requirement to be vaccinated in accordance with the Western Australian Government issued Resource Industry Worker (Restrictions on Access) Directions, issued under the Public Health Act 2016 (WA).
Notwithstanding its consultation with the Applicant, on 10 November 2021 the Applicant advised the Respondent’s Project Manager that he was not going to get vaccinated, and he thought things would change in 2022. The Project Manager explained to the Applicant he would be dismissed because he would be unable to enter the work site, if not vaccinated.
At the end of November 2021, the Applicant and Project Manager discussed the Applicant taking leave from 1 December 2021. However, the Respondent states that the Project Manager explained clearly to the Applicant that even by agreeing to a period of leave, should the Applicant not be able to provide evidence of vaccination he would not be able to fulfil the inherent requirements of his role and would, on that basis, not have a job.
On the Applicant’s last day on site in November 2021, he handed back his site access swipe card to the Respondent on the understanding he was not planning to be vaccinated, or that things would change in 2022.
The Respondent’s HR Department proceeded to notify the Applicant he was dismissed on the basis that he had not been vaccinated and therefore was unable to perform the inherent requirements of the job. The Respondent’s HR team sent emails to the Applicant on the 3, 10 and 20 December 2021. The email dated 10 December 2021 advised the Applicant his employment was terminated and provided 2 weeks’ notice. The termination of employment was said to be effective on 24 December 2021.
The emails of 3, 10 and 20 December 2021 were sent to the Applicant’s personal email address as recorded on the Respondent’s HR database.
The Applicant submits that he was dismissed whilst on annual leave. The Applicant argues that his annual leave was approved until 19 January 2022 by the Project Manager, and the discussions he had with the Respondent about the vaccine centred on him making a decision after he returned from leave on 19 January 2022. Whilst on leave, he did not check his email as frequently as when not on leave and therefore it was not until the second week of January 2022 that he found a dismissal email. This is despite, said the Applicant, still being on leave until 19 January 2022.
The Applicant therefore attributes the one-day delay in filing his application, on the Respondent dismissing him whilst on annual leave.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21-days after the dismissal took effect. The other matters are not relevant for the purpose of this application.
For the application to now proceed, it is necessary for the Applicant to show that his application was made in time or to obtain an extension of time in which to make the application. Section 394(3) provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a)the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c)any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.[1]
In short, the issues before me are:
a) when did the Applicant’s dismissal take effect;
b) whether the unfair dismissal application was made within 21 days after the dismissal took effect; and
c) if it was not, whether:
i.there are exceptional circumstances that warrant an extension of time being granted; and
ii.it is fair and equitable to grant that extension.
Background
The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application were as follows.
The Applicant worked for the Respondent at the Alcoa Myara mine site as a Heavy Diesel Mechanic (HD Mechanic).
Mr Richard Coutts is the Senior Project Manager at the site and recalls meeting with the Applicant and another employee in the Workshop crib room at 10:00hrs on 10 November 2021. In that meeting he explained to the employees the government vaccination mandate and the resulting effect on entry to the Alcoa mine site. Whilst the Applicant was aware of the requirement, Mr Coutts explained that the Applicant informed him that he was not going to have the vaccination and held a belief that the situation would change in 2022.
Mr Coutts said that it was following this meeting that the Applicant applied for, and was granted, annual leave at the end of November 2021. Mr Coutts said that the Applicant was fully informed and understood that after annual leave was complete, he would either need to be vaccinated to return to site or would not be able to enter site, which would result in the loss of employment.
It appears uncontroversial that the Applicant’s leave application form had a start date of 1 December 2021 and an end date of 19 January 2022. In the comment section of the annual leave form, it was written, ‘[A]ccess denied to workplace due to covid vaccination unlawful enforcement’. The leave form was signed by the Supervisor and Project Manager of the Respondent and was dated 28 November 2021 and 30 November 2021 respectively.
Mr Coutts stated that the Applicant continued to refuse to be vaccinated during November and hence, he asked the Applicant to hand in his Alcoa swipe access card before taking annual leave as he could not come back to work until he could provide proof of vaccination. Mr Coutts said that for reasons unknown, and without notice, the Applicant informed his supervisor he was immediately going on annual leave, two days before the agreed date and handed in his swipe access card and left site.
The email correspondence sent to the Applicant by the Respondent has been traversed at paragraph [6] of this decision, making it unnecessary to outline it once again.
In the documentation filed with the Commission, the Applicant provided what appears to be a screenshot of two transactions and an invoice. The first screenshot reads:
Description EFTPOS 08/01 07:25BUDGET TRUCK RENTALS BURSWOOD WA AU
Amount -$740.00
When Sunday, 09 January 2022
The screenshot details that the category was car hire, with the rental location being situated in Burswood, Western Australia.
A further screenshot is provided for 23 January 2022, for car hire, and there appears to be an invoice dated 19 January 2021 for vehicle rental (3 Tonne Hino 300) during the period of 22 January 2022 to 24 January 2022.
2.1Applicant’s submissions and evidence
It is not unusual for a self-represented party to intermingle her or his evidence with their submissions. It is for that reason I have traversed what was said by the Applicant under the above heading.
Whilst the Applicant initially gave evidence that he learnt about his dismissal having checked his emails in the second week of January 2022, when challenged at hearing about the date he became aware of his dismissal, he initially said he did not look at his emails as he was on holidays. When again challenged as to what the date was when he checked his emails to discover the dismissal letter, the Applicant appeared to decide on the date of 2 January 2022.
By way of explanation, the Applicant stated that having embarked on a period of leave he travelled with his family to Augusta for a period of three weeks, returning on 2 January 2022. While it appears that the Applicant possessed a mobile phone and a laptop, he was emphatic that he did not check his emails whilst on holiday and confirmed that it was now the case that he recalled checking his emails on 2 January 2022 and located the dismissal letter at that time.
The Applicant continued that on 3 January 2022 he travelled to Narrogin to see whether he could secure a job with either of two businesses within the town. However, whilst there he met a farmer who needed a HD Mechanic to start straight away. During the period of 3 January 2022 to 14 January 2022, the Applicant states that he had to transport his belongings to a rural country location some 300km from where he had been living, clean the house he was to move to and the one he was departing from.
When asked at hearing whether he had noticed that on 26 December 2021 he had received pay into his account that was some $2000.00 (net) more than his usual pay, the Applicant responded, ‘well why should I have’. He continued that he had not noticed and questioned why he should have checked his bank account. In his further response to having received a larger sum than usual, the Applicant said that if he had looked at his bank account, he would have been thinking that the money was the $15000.00 from Key Start.
2.2Respondent’s submissions
The Respondent contends that it is difficult to conceive that the Applicant was not aware he had been dismissed until the second week of January 2022, because it would have been evident to the Applicant that on 26 December 2022, he received a final net payment of $7377.15 which was substantially more than previous payments during October to November 2021.
The Respondent highlighted that when it was communicated to the Applicant that his unfair dismissal application had been made one day late, the Applicant changed his position from previously stating that his dismissal took effect on 24 December 2021, to later saying it took effect on 19 January 2022. The Respondent observes that a difficulty lies with the termination taking effect on 19 January 2022, because the Applicant made the unfair dismissal application on 15 January 2022.
The Respondent acknowledges that a termination of employment only takes effect when it is communicated. However, included in the Applicant’s documents filed with the Commission was a truck rental receipt dated 9 January 2022. The Respondent notes that if this was for a truck to provide transport to relocate to his new farm job in Kurrenkutten, the Applicant must have known of his termination of employment before then so as to allow time to look for a new job, have this job offered to him and commence arrangements for relocation.
In the Respondent’s view, seeking new employment, moving house contents and family to a new location only 300km away is not an exceptional circumstance, nor is not having telephone or wireless connections in Kurrenkutten when there are at least three major local population centres within close proximity where there is mobile phone coverage and access to the internet at public libraries. Irrespective of this, said the Respondent, the move date according to the receipts provided, was some eight days after the 21-day period required to submit an unfair dismissal application.
As to the merits of the Applicant’s case, in his Form F2 the Applicant states that his dismissal was unfair because he did not agree to the COVID-19 vaccination mandate being forced upon him by coercive means by the Respondent and its client, Alcoa Australia. The Respondent contended that cases such as the Applicant’s, have already been considered on numerous occasions by the Fair Work Commission and by other Australian courts, in a variety of different circumstances, and have been rejected. Accordingly, the Respondent believes it had a valid reason for termination.
The date when the dismissal took effect
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 24 December 2021. For his part, the Applicant was unable to initially provide the date by which he became aware of his dismissal, stating only that it was some time in the second week of January, but he could not recall when he accessed his email to read the letter of termination.
As the hearing progressed, the Applicant changed his position. Instead, he now purported that he had checked his emails and learnt of his dismissal on 2 January 2022.
It is to be said that there was something disconcerting about the Applicant’s vacillation regarding the date when he became aware that he was dismissed. In short, it was difficult to extract a consistent answer from him until he landed on the date of 2 January 2022. This evidence of course was quite critical to his case. After all, the Respondent possessed no direct evidence of when the dismissal took effect, save the emails that were sent, with the email dated 10 December 2021 attaching the dismissal letter.
Furthermore, there is no denying that there appears to have been some misunderstanding on behalf of the Respondent’s Operations department and that of its Human Resources department. It is evident that the Applicant was on a period of leave at the time his dismissal was communicated.
In Ayub v NSW Trains (Ayub),[2] the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[3] The Full Bench explained at paragraph [42] of Ayub:
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
The Applicant was notified by email on 10 December 2021, that he had been dismissed and that his employment would end on 24 December 2021. In this respect, he was provided with notice of the termination of his employment for a period of two weeks.
The issue before me now, is whether the Applicant had a reasonable opportunity to find out he had been dismissed on 24 December 2022. In Ayub the Full Bench made the following observation:
[42]…That is, we do not consider that s 394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.”
I have taken into account that the Applicant was on pre-arranged annual leave between 1 December 2021 and 19 January 2022, notwithstanding it being cut short by the Applicant’s dismissal. Of course, an employer is not precluded from dismissing an employee whilst they are on annual leave.
Come 24 December 2021, the Applicant was no longer an employee of the Respondent, notwithstanding his argument at one stage of the proceedings that the date of his dismissal was early February 2022 (sometime after having made the unfair dismissal application).
The circumstances before me are not dissimilar to those in Ayub where the Full Bench drew upon the example of an applicant possessing a legitimate explanation for not being able to read a notice of termination immediately upon delivery. In Ayub, the example cited was where an applicant was on a period of approved leave. Sure enough in the case before me, the Applicant has provided a copy of the signed leave application form and the Respondent does not cavil with the point that the annual leave had been approved until 19 January 2022.
However, what the Applicant asks of this Commission is to believe his narrative that from the commencement of his leave until 2 January 2022, he was on holiday in Augusta, Western Australia, and therefore did not have a reasonable opportunity to find out he had been dismissed on 24 December 2022. He asks the Commission to believe this narrative in circumstances where when pressed, he changed his evidence in respect of the date on which he became aware of his dismissal – from the second week of January 2022 to 2 January 2022 and furthermore appeared not to provide a direct answer concerning his awareness of a final pay deposited into his account on 26 December 2021. When challenged on this point, the Applicant engaged in asking questions of the cross examiner rather than answering the same in the first instance.
The Applicant has not provided any direct evidence that whilst on annual leave he holidayed in Augusta. He asks this Commission to rely only upon his assertion of the point. I do not accept that the Applicant attempted to assist the Commission by accurately recounting his recollection and circumstances. In particular, I found that the Applicant lacked clear recall and at times obfuscated.
Based upon the evidence provided by the Applicant at hearing, I am unconvinced by the Applicant’s assertion that due to being on annual leave he did not have reasonable opportunity to check his personal email account to find out he had been dismissed. Whilst the annual leave had been approved, and at the time of leaving the site he had not been informed that his employment had terminated, it was evidently clear to the Applicant, in my view, that his stance regarding not providing evidence of COVID-19 vaccination would culminate in his dismissal – he knew his employment was at risk. The removal of the Applicant’s access pass card signified as much.
In such circumstances, I hold the view that the Applicant had a reasonable opportunity to find out that he had been dismissed. Ayub does not stand for the proposition that a period of approved leave will always prove a legitimate explanation for not being able to read a notice of termination immediately upon delivery. In my view all circumstances are to be considered, including any evidence to support there having been no reasonable opportunity for an applicant to find out she or he had been dismissed.
A letter was provided to the Applicant’s personal email address, which he had provided to the Respondent. It is accepted that in a situation where an employee is informed by email that she or he has been dismissed, the employee can usually be regarded as knowing, or having had a reasonable opportunity to know, of the dismissal, when the email is received in the inbox of the employee’s usual email address.[4]
Having found that the Applicant had been provided with a reasonable opportunity to find out he had been dismissed on 24 December 2021, it follows that the date when the dismissal took effect was that same date. Therefore, the Applicant’s unfair dismissal application was made one day late. It therefore proves necessary to consider whether the grant of an extension of time is warranted.
Extension of time
Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd (Nulty).[5] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no significance, when taken together, can be considered exceptional.
In the decision of Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[6] the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:
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.[7]
In the directions issued to the parties on 7 February 2022, both were referred to s 394(3) of the Act and the meaning of ‘exceptional circumstances’. Having considered the views of the parties, the materials submitted and Commission’s case management file, I determined that a hearing was the appropriate.
4.1Reason for the delay
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.[8] 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. 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.[9]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[10] However, the circumstances from the time of the dismissal are considered to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[11]
The reason for the delay did not appear to be the Applicant’s ignorance about the time limit of 21 days, but rather a lack of knowledge regarding the date of his dismissal. Such that he found out about his dismissal after 24 December 2021. However, I have addressed this issue at paragraphs [33] to [48] of this decision and adopt what I have said there.
Furthermore, it is apparent that during the period from the date the dismissal took effect to the date the unfair dismissal application was required to be filed under the statutory time limit, the Applicant had engaged in seeking employment and relocating to the location of his prospective employer. The Applicant spoke of the difficulties and the time constraints experienced in packing up one home, to move to another. While appreciative of the difficulties of finding employment and relocating, it is apparent that the Applicant was still engaged in this process post the date when his unfair dismissal application was due to be made. So much can be gleaned from the invoices of truck and vehicle hire.
It is not unusual or out of the ordinary to be seeking employment after having been dismissed or having to relocate to commence work with a new employer. These do not constitute circumstances that are out of the ordinary or exceptional. Furthermore, as noted by the Respondent, a Form F2 may be submitted orally via the telephone, and in its electronic or paper version it is able to be completed in a minimal amount of time by a self-represented party. The questions asked on the Form F2, are not difficult for a literate person to contend with. It is noted that there was no suggestion that the Applicant lacked literacy competence or was neurodiverse.
While sympathetic to the Applicant’s circumstances and acknowledging that he is aggrieved by his dismissal, having considered the delay of one day and appreciating the circumstances leading up to it, I am not satisfied that the Applicant has provided a credible explanation for the delay, and this therefore weighs against a finding of exceptional circumstances.[12]
4.2Whether the person first became aware of the dismissal after it had taken effect
As has been traversed, at all material times from the time the Applicant was notified of his dismissal on 24 December 2021, until the date the unfair dismissal application was made, the Applicant knew he had been dismissed. I therefore consider this to be a neutral factor.
4.3Action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[13] I have considered all submissions and the evidence in this respect. There is no evidence that the Applicant challenged his dismissal albeit he challenge the COVID-19 vaccination requirement. This weighs against a finding of exceptional circumstances.
4.4Prejudice to the employer
I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances.
4.5Merits of the application
In Kornicki v Telstra-Network Technology Group,[14] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[15]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[16] The merits of the application more generally would need to be scrutinised. This of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.
However, the following observation is made. The Respondent submits it had a valid reason for the dismissal of the Applicant on the basis that he could not meet the inherent requirements of his position (and remained unable to, given his COVID-19 vaccination status) and he had failed to comply with the Respondent’s direction to provide evidence of vaccination. However, whether there was a valid reason for dismissal is but one of the factors taken into account by the Commission in determining whether a dismissal was unfair.
4.6Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[17] where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]
Based on the materials filed and the circumstances, I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed. As such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension. While the Applicant explained the reasons for the delay in making his unfair dismissal application, when the totality of the evidence is considered, I am unpersuaded that the Applicant’s circumstances are ‘exceptional’. This is notwithstanding that the delay was of one day.
There of course may be circumstances in which mere receipt of an email attaching a letter of termination may not constitute a reasonable opportunity to become aware of a dismissal - for example where the employee has not read the email because of evidence of an incapacitating illness or where the employee is legitimately unable to access their email for other reasons that are shown on the evidence.[19] However, that was not the evidence which was put before this Commission. Further, when one considers the reasons for the delay and the other factors the Commission is bound to consider, the circumstances are such that I do not consider it fair and equitable to grant the extension.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[20] will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr J. Greyling for himself;
Mr P. Robertson of the Australian Mines and Metals Association on behalf of the Respondent.
Hearing details:
Perth (telephone)
23 March 2022
[1] Fair Work Act 2009 (Cth) s 394(3) (The Act).
[2] [2016] FWCFB 5500 (Ayub).
[3] Ibid [48].
[4] Ibid [50].
[5] (2011) 203 IR 1 (Nulty).
[6] [2018] FWCFB 901 (Stogiannidis).
[7] Ibid [38].
[8] Ibid [17].
[9] Ibid [39].
[10] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].
[11] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].
[12] Stogiannidis (n 6).
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[14] Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[15] Ibid.
[16] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899 [38].
[17] [2015] FWC 8885.
[18] Ibid [29].
[19] Ayub (n 2) [50].
[20] PR739562.
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