Joan Muir v Black Cabs Combined Pty Ltd T/A 13 Cabs

[2021] FWC 6620

[2021] FWC 6620

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joan Muir
v
Black Cabs Combined Pty Ltd T/A 13 Cabs
(U2021/11343)

COMMISSIONER LEE MELBOURNE, 23 DECEMBER 2021

Application for an unfair dismissal remedy

[1] Ms Joan Muir (the Applicant) commenced employment with Black Cabs Combined Pty Ltd T/A 13 Cabs (the Respondent) on or about 3 February 2014. She was employed in the position of a Customer Service Representative. It is not in contest that she was terminated from her employment by the Respondent on 11 October 2021.

[2] The reason given by the Respondent for the decision to terminate the Applicant’s employment was:

“Following the Applicant’s refusal to be vaccinated against COVID-19, and her consequent inability to comply with the Directions, the Respondent terminated the Applicant’s employment on 11 October 2021 due to her inability to perform the inherent requirements of her role.” 1

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application was lodged on 8 December 2021.

Application was filed outside the statutory timeframe

[4] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[5] The parties agree, and I so find, that the dismissal took effect on 11 October 2021. Based on a termination date taking effect on 11 October 2021, the application for a remedy should have been lodged by no later than 1 November 2021.

[6] The application was therefore lodged outside of the time prescribed. The application was made in effect, 37days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[7] Before dealing with the evidentiary matters, I will refer to the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[8] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay,

•  whether the Applicant first became aware of the dismissal after the date it took effect,

•  any action taken by the Applicant to dispute the dismissal,

•  prejudice to the Respondent including prejudice caused by the delay,

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[9] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances. 2

[10] 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 or unprecedented, nor do they need to be very rare. 3 I must be satisfied, taking into account s.394(3), that there are exceptional circumstances.

[11] I now consider these matters in the context of the application.

a) Reason for the delay

[12] 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. 4

[13] The Applicant lodged a first application for unfair dismissal in the Commission on 1 November 2021, within the statutory timeframe. The Applicant discontinued that application prior to a conciliation taking place at the Commission. The Applicant’s explanation for the delay in lodging this application is essentially that she had made the first application within the timeframe, and that her reasons for discontinuing the first application are an acceptable reason for the delay in filing the present application.

[14] According to her Form F2 application, the Applicant cancelled the conciliation for the first application by way of an email to the Commission on 2 December 2021. The Commission, after receiving the email, contacted the Applicant by phone and confirmed her intention to cancel the conciliation and to discontinue the application entirely. The Applicant does not dispute that she discontinued the first application. 5

[15] In summary, the Applicant submits that she discontinued the first application because:

•  she was ill-informed as to the Commission’s processes,

•  she was not fully aware of the consequences of the email sent 2 December 2021,

•  she did not believe the conciliation would be “completely cancelled”,

•  she was fearful of possible costs associated with her unfair dismissal application as she was no longer employed, and the additional financial stress resulted in her being unable to comprehend the situation. She was also panicked by a lack of information; and

•  she did not have any advice, representation or support.

[16] Essentially, the reason for the delay advanced by the Applicant is that her decision to discontinue the first application was impaired in such a way that it represents an acceptable reason for the delay in the present matter.

[17] I have considered the Applicant’s explanation for the delay and I am not satisfied that it represents an acceptable reason for the delay.

[18] Firstly, in respect to the Applicant’s confusion about the processes in the Commission, she could have for example looked at the Commission’s website to obtain information about the processes followed. The Applicant indicated that she did not make an attempt to look at the Commission’s website. 6 While the Applicant says that she was “ill informed” there is no evidence that she was provided any incorrect information about the Commission’s processes.

[19] Secondly, the Applicant filed the present application 6 days after discontinuing the first application. It is not clear why the Applicant felt comfortable in re-commencing proceedings at the time as there is no evidence that anything changed in that period. Nor is there any explanation as to why it took a further 6 days from when the first application was discontinued for the Applicant to decide to make a new application. There is no apparent reason for that part of the delay.

[20] Thirdly, on the issue of the Applicant’s concern about being required to pay court costs, when asked why she held that fear the Applicant said that she did not know why. Further, she confirmed that the Respondent had made no threat to pursue her for costs. 7 There is no apparent basis for the Applicant to have harboured a concern about having to pay costs.

[21] Fourthly, the fact the Applicant was not represented at time of the first application is not an unusual circumstance. In any matter before the Commission, a person must not be represented by a lawyer or paid agent in a conference or hearing relating to the matter without the permission of the Commission. 8 Parties regularly conduct proceedings without advice or support. Importantly, the Applicant foreshadowed in her Form F2 that she “may look into seeking” “representation/support or advice”. The Applicant has not provided any evidence of an attempt to obtain support, legal or otherwise, and she has been capable of conducting proceedings in the present matter without support.

[22] I accept that the Applicant’s feelings of fear were a factor in her discontinuing the first application. The Applicant has not provided any medical evidence as to her mental state at the time she discontinued the first application. There is insufficient evidence that her state of mind was so impaired at the time she discontinued the first application to represent an acceptable reason for the delay here.

[23] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

b) Whether Applicant first became aware of the dismissal after the date it took effect

[24] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 11 October 2021 that her employment would end on 11 October 2021.

[25] As the Applicant became aware of the dismissal on the day the dismissal took effect, it is a factor which weighs somewhat against the Applicant.

c) Action taken by the Applicant to dispute the dismissal

[26] Turning next to the question of the action taken by the Applicant to dispute her dismissal. The Applicant’s evidence was that she had lodged two applications for an unfair dismissal remedy in relation to the termination. I accept that the filing of the first application represents very clear action taken by the Applicant to dispute the dismissal. However, it must also be considered that application was discontinued.

[27] In the circumstances, that is a matter that weighs slightly in favour of the Applicant.

d) Prejudice

[28] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent did not submit that there was any prejudice to the employer. 9

[29] In the circumstances, that is a matter that is neutral in the instant case.

e) Merits of the application

[30] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[31] It is not in dispute that the Applicant was covered by COVID-19 Mandatory Vaccination (Workers) Directions (the Directions) and was required under those Directions to be vaccinated. 10As the Applicant was not vaccinated and had not provided a medical exemption, it was not permissible for the Respondent to continue to employ her beyond 15 October 2021 without breaching the Directions. Viewed in isolation, this is likely to be found to be a valid reason for dismissal. However, there are some contested facts and other circumstances which will be relevant to a determination of whether the dismissal was unfair.

[32] Firstly, the Applicant was dismissed on 11 October 2021. The Directions did not mandate vaccination until 15 October 2021. The Applicant gave evidence that she had a doctor’s appointment arranged for the morning of 15 October 2021 to discuss her options. The Applicant indicated that she has “a serious health condition I manage currently very well and the possible risk to my health and wellbeing is very serious.” Further, that the Respondent was aware of her “heart condition”, 11 and that she “had not at any time blatantly refused to be vaccinated [and] just wanted to make certain that the vaccine was okay for me to have with my medical condition.”12

[33] However, the Applicant accepted that she had time to see a doctor to get seek advice as to the safety or otherwise of the COVID-19 vaccines prior to the dismissal. 13 The Applicant’s claim that she thought she could not go to the doctor because of lockdown is not plausible.14

[34] The Respondent submits that it provided every opportunity for the Applicant to get vaccinated or provide a medical exemption. 15

[35] The Respondent claims that on 11 October 2021 the Applicant advised the Respondent that she had not received, and did not intend to receive, the COVID-19 vaccination. 16 During the hearing the Applicant disputed that is what happened.17 The Applicant indicated that she recalls the following exchange with Mr Sisson (National CX Manager):

“When I was called, I was asked whether - from what I can remember of the day, because it was a bit traumatic that day.  And I remember him saying to me, 'I know of your heart condition.  Have you got an exemption?'  And I said, 'No.'  And that's when I was told well, you know, because you haven't got the vaccination and you haven't got an exemption … But I - certainly at no stage did I say no, I wasn't going to get a vaccine, vaccination, at all.” 18

[36] The Applicant did not provide any medical evidence to explain her failure to be vaccinated to the Respondent and confirmed during the hearing that she does not have a medical exemption, 19 and had not at the time of the hearing received any doses of a COVID-19 vaccine.20

[37] The Respondent claims that, during the month of October, it sent two emails to the Applicant specifically asking her about her medical exemption, though the Applicant claimed she did not receive these emails. 21 The Respondent also arranged a vaccination service for its employees.

[38] There are likely other factors which will weigh in favour of the Applicant such as length or service and possibly other matters. Further, I note that the Applicant was isolating due to a COVID-19 case at the workplace from on or around 18 September 2021 and was on sick leave at the time of her dismissal on 11 October 2021. 22 This is a factor which also is likely to weigh in favour of the Applicant.

[39] It seems to me therefore, that her claim is, on a preliminary assessment basis, not a particularly strong case but it is not without merit. That is not to suggest that it will succeed but I am satisfied that there is at least some merit which would give the Applicant a justifiable reason to pursue her unfair dismissal claim.

[40] In the circumstances, that is a matter that weighs slightly in favour of the Applicant.

f) Fairness as between the Applicant and other persons in a similar position

[41] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, 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 or like 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.

[42] 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

[43] 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.

[44] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

[45] As I have indicated, I am not satisfied there is an acceptable reason for the delay. This weighs against the Applicant. The Applicant became aware of the dismissal on the day the dismissal took effect, and this is a factor which weighs against the Applicant. The Applicant took action to dispute the dismissal, and this weighs in her favour. As to the merits of the application, this weighs slightly in favour of the Applicant. All other factors are neutral considerations. Looking at the factors overall, while the consideration of the merits of the application and the action taken to dispute the dismissal weigh slightly in favour of the Applicant, the failure to provide an acceptable reason for the delay and the fact that the Applicant was aware of the dismissal on the day it took effect weigh against the Applicant. The other factors are neutral considerations.

[46] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued in PR736875.

COMMISSIONER

Appearances:

J Muir, Applicant.
H Philipp, for the Respondent.

Hearing details:

2021.
Melbourne (via Microsoft Teams):
December 17.

Printed by authority of the Commonwealth Government Printer

<PR736873>

 1   Form F3 - Employer response to unfair dismissal application, at question 3.1.

 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   Transcript at PN76.

 6   Transcript at PN82.

 7   Transcript at PN79 – PN80.

 8   Fair Work Commission Rules 2013 r 12(1).

 9   Transcript at PN152 – PN154.

 10   Transcript at PN97 and PN160.

 11   Transcript at PN115.

 12   Transcript at PN117.

 13   Transcript at PN119 – PN121.

 14   Transcript at PN122.

 15   Form F3 - Employer response to unfair dismissal application, at question 3.1.

 16   Ibid.

 17   Transcript at PN114.

 18   Transcript at PN115.

 19   Transcript at PN116,

 20   Transcript at PN109.

 21   Transcript at PN96.

 22   Transcript at PN185 – PN187.