Jodi Mills v Village Roadshow Theme Parks Pty Ltd
[2023] FWCFB 6
•12 JANUARY 2023
| [2023] FWCFB 6 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jodi Mills
v
Village Roadshow Theme Parks Pty Ltd
(C2022/6719)
| VICE PRESIDENT CATANZARITI | SYDNEY, 12 JANUARY 2023 |
Appeal against decision [2022] FWC 2297 of Commissioner Simpson at Brisbane on 31 August 2022 in matter number U2022/4111 – extension of time refused.
Ms Mills (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Commissioner Simpson, issued on 31 August 2022, for which permission to appeal is required. The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment with Village Roadshow Theme Parks Pty Ltd (the Respondent) under s.394 of the Act.
An appeal filed under s.604 of the Act must be filed within 21 calendar days after the date of the decision being appealed against, or within such further time allowed by the Commission.[2] The Decision was issued on 31 August 2022, and the prescribed 21-day period ended on 21 September 2022. The Appellant lodged the Form F7 – Notice of Appeal on 4 October 2022, therefore making the application 13 days out of time. Accordingly, this appeal cannot proceed unless the Commission grants the Appellant an extension of time.
Directions were set for the filing of material by the Appellant. As this matter was listed for extension of time and permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed submissions in accordance with the directions and indicated that they consented to the matter being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
For the reasons that follow, an extension of time is refused.
Decision Under Appeal
The Appellant was employed by the Respondent as a part time photographer at Sea World. At first instance, the Appellant’s matter was heard and decided together with three other applicants due to the similarity of their cases. The Appellant was terminated after failing to comply with the Respondent’s direction to be vaccinated against COVID-19 by 17 December 2021. The events leading to the Appellant’s dismissal are summarised as follows:
· 9 November 2021 – the Respondent sent an email to all employees advising of the government health mandate requiring employees working in Theme Parks, to be fully vaccinated when 80% of the adult population (predicted to be 17 December 2021) were double vaccinated. The Respondent advised that from that date, only fully vaccinated employees would be permitted to enter their Theme Parks. The Respondent required all employees to complete the latest vaccination survey and provide copies of their certificates.
· 15 November 2021 – the Respondent requested all employees provide their vaccination status by 1 December 2021 and that they were unable to roster employees who had not provided proof of vaccination.
· 21 November 2021 – the Appellant emailed the Respondent raising her concerns about disclosing her vaccination status and personal health information.
· 24 November 2021 – the Respondent emailed all employees advising that if they did not provide their vaccination certificate or progress towards being double vaccinated by 1 December 2021, they would be classified as unvaccinated and suspended without pay. The Appellant also emailed the Respondent outlining her views on the legality of the COVID-19 vaccinations and the Respondent’s request that she provide her vaccination status.
· 2 December 2021 – the Respondent met with the Appellant to discuss her correspondence.
· 3 December 2021 – the Appellant emailed the Respondent querying the validity of the decision to suspend staff. The Respondent replied by providing her with a link to the latest Queensland Health information on this matter.
· 8 December 2021 – the Respondent emailed all unvaccinated employees advising that they could not be offered shifts from 17 December 2021 and that the situation would be reviewed on 10 January 2022.
· 11 December 2021 – the Appellant worked her last rostered shift. The Appellant took paid leave thereafter until 15 December 2021.
· 17 December 2021 – the Appellant emailed the Respondent raising allegations of potential civil and criminal matters as a result of the direction and vaccination requirement.
· 20 January 2022 – the Respondent sent a show cause letter to the Appellant requesting that she set out why she should not face disciplinary action for failing to comply with the direction by 24 January 2022. The Appellant did not respond to this correspondence.
· 7 February 2022 – the Respondent gave the Appellant a further opportunity to reply to the show cause letter and advised that if she remained unvaccinated they would have no option but to terminate her employment.
· 1 March 2022 – the Respondent emailed the Appellant asking whether her vaccination status had changed. No response was received from the Appellant.
· 17 March 2022 – the Appellant was sent a letter from the Respondent, advising that her employment had been terminated due to non-compliance with the direction.
At first instance all the applicants filed submissions jointly, these submissions focused on the lawfulness and efficacy of COVID-19 vaccines. The Appellant confirmed in her oral evidence that she was not prepared to be vaccinated on the basis that she did not believe it was lawful. The Respondent submitted that they were required to comply with the Public Health Direction, and that it was lawful and reasonable to direct the applicants to comply with it. The Respondent submitted that they made significant efforts to communicate with the applicants and notified them multiple times of the consequences of non-compliance with the direction. Further, by reason of the requirements of her position, it was not possible for the Appellant to work remotely.
The Commissioner also set out all the factors the Respondent considered in making the decision to terminate the Appellant. For example, the Respondent considered the Appellant’s 17 years of employment, that the Appellant was aware of the direction and had ample time to comply and that the Appellant was unlikely to ever become vaccinated.
The Commissioner then began his consideration of s.387 of the Act. First, considering whether there was a valid reason for the Appellant’s dismissal. The Commissioner found that the relevant Public Health Direction applied to the Respondent and that the Appellant made clear that she was unlikely to ever comply with the direction and agreed that she could not perform her work remotely. In making these findings the Commissioner rejected the applicants’ contentions that they were subject to coercion to participate in clinical trials and that the Commonwealth of Australia Constitution Act (Cth) prohibited them from complying with the direction. Therefore, the Commissioner was satisfied that the Appellant’s failure to comply with the Respondent’s direction constituted a valid reason for dismissal.
Having regard to ss.387(b) and (c) the Commissioner was satisfied that the Appellant was made aware in the months leading up to the implementation of the mandate that if she was not vaccinated by 17 December 2021 her employment may be terminated. Further, the Commissioner noted that the Appellant did not claim she was unreasonably refused a support person (s.387(d)) and that s.387(e) was irrelevant. The Commissioner also found that the Respondent was a large employer with a well-resourced human resources department (ss.387(f) and (g)).
In terms of other relevant matters (s.387(h)), the Commissioner took into account the Appellant’s length of service and the lack of performance issues, noting that these weighed in favour of the Appellant. The Commissioner also had regard to the fact that the Respondent consulted with the Appellant in relation to the requirement to be vaccinated.
Overall, the Commissioner was satisfied that there was a valid reason for the Appellant’s dismissal and the Respondent provided the Appellant with a fair process. The Commissioner therefore found that the Appellant was not unfairly dismissed and he dismissed the Appellant’s application.
Grounds of Appeal and Submissions
The Appellant provided extensive grounds of appeal in her Form F7 – Notice of Appeal and written submissions. We note that much of the Appellant’s submissions are a restatement of the factual background of her dismissal as she perceives it. We have summarised and distilled her submissions in the following three paragraphs.
The Appellant alleges a significant error of fact and alleges that the Respondent breached their Code of Conduct and employment contract by suspending employees without pay. Further, the Appellant submits that she has a legitimate reason for not being vaccinated, as she has an auto immune disease and a blood disorder, where vaccination is not recommended. The Appellant submitted that her General Practitioner went on maternity leave in November 2021 and her mental health was not stable enough to ask another doctor for an exemption. Likewise, the Appellant submits that she never refused to be vaccinated, but rather that the Respondent did not ask her to explain why she was not vaccinated. The Appellant also submits that she was subject to bullying and discrimination throughout 2021 and saw a nurse and psychologist for support. The Appellant submits that she should have been able to return to work as her termination notice said, “you are invited to apply for future roles with VRTP should the Public Health and Social Measures restrictions be lifted, or you elect to become vaccinated.”
Additionally, the Appellant takes issue with the date of termination, alleging that her actual date of termination is different to that of what was accepted at first instance. The Appellant states that she was placed on “notice of termination” on 17 March 2022 and was given four weeks’ notice. The mandate was revoked on 14 April 2022 and therefore this is within her notice period and she should be reinstated. Further, the Appellant submits that she was made to complete Learning and Development modules remotely during her notice period.
The Appellant provided the following reasons as to why her appeal is in the public interest: employees were given minimal time to become fully vaccinated; the Respondent breached their Code of Conduct by standing down employees; the workplace enabled bullying and discrimination; the Respondent rejected unvaccinated employees’ applications for other positions; and that she has suffered mentally, emotionally and financially because of her dismissal.
Extension of time to file the appeal
It is necessary at the outset to consider whether the Appellant should be granted an extension of time to file her appeal. The usual principles applying to consideration of an application to extend time to lodge an appeal were summarised by the Full Bench in Jobs Australia v Eland[3] as follows:
“[5] Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):
·whether there is a satisfactory reason for the delay;
·the length of the delay;
·the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
·any prejudice to the respondent if time were extended.” (footnote omitted)
Taking these matters into account, the exercise of discretion will be guided by a consideration of whether, in all the circumstances, the interests of justice favour the Appellant being granted an extension of time within which to lodge her appeal.[4]
Reason for delay
The Appellant submits that the delay was caused by an error in the audio recording of the hearing and because she attempted to obtain the transcript of the first instance proceeding at a cheaper cost due to financial hardship. The Appellant also submits that when listening to the audio of her being questioned during the hearing, she experienced a “stimulant crash” when her adrenalin/excitement wore off at the same time as her ADHD medication and that this caused her to have trouble focusing.
We have considered the reasons provided by the Appellant and are not satisfied that she has provided a satisfactory explanation for the delay. The Appellant’s attempts to obtain the audio and transcript of the proceedings do not provide a satisfactory explanation for the delay, especially where it was open to the Appellant to file her Notice of Appeal without being in receipt of these materials. Similarly, the Appellant’s statement that she experienced a “stimulant crash” does not provide a satisfactory explanation for the 13 day delay, particularly in circumstances where the Appellant has failed to file any medical evidence verifying her condition or the impact it had on her during the period of delay. We consider that the absence of a satisfactory reason for the delay weighs against the grant of an extension of time.
Length of delay
The delay in filing the appeal is 13 days. This delay is not insignificant. We find that this weighs against the grant of an extension of time.
Nature of the appeal grounds and likelihood that they would be upheld if time were extended
Having considered the Appellant’s submissions and materials filed on appeal, we are not satisfied that there is an arguable case of error. We are of the view that the Appellant’s submissions are merely an expression of her dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of her case as put to the Commissioner at first instance. However, for completeness, we address the Appellant’s submissions as follows.
The Appellant’s submission that the Respondent breached their Code of Conduct and employment contract by suspending employees without pay is without substance. It was open to the Respondent to suspend the Appellant without pay in circumstances where the Public Health Direction, which was binding on both the Appellant and the Respondent, prohibited the Appellant from working at the Respondent’s premises because she was not vaccinated against COVID-19 and the Appellant had been notified of the requirements of the direction numerous times. This ground is misconceived and discloses no arguable case of error.
The Appellant also submitted that she should not have been terminated as she has a valid medical condition which exempted her from vaccination. The Appellant did not raise this argument at first instance. As is made clear in paragraph [42] of the Decision, the Appellant “confirmed in her oral evidence that she was not prepared to be vaccinated on the basis that she did not believe it was lawful”. Further, the Full Bench is unable to determine the validity of this claim on appeal as no medical evidence has been filed by the Appellant, either at first instance or on appeal, in support of a medical exemption. The fact that the Appellant’s General Practitioner was on maternity leave in November 2021 is not a reasonable excuse for failing to provide medical evidence in the period of approximately four months between being notified of the requirements of the Public Health Direction and the termination of the Appellant’s employment.
We have considered the Appellant’s claims surrounding the bullying and discrimination she says she experienced while working for the Respondent. While we sympathise that this was the Appellant’s alleged experience, we note that this does not impact the Commissioner’s finding that there was a valid reason for the Appellant’s dismissal and that the dismissal process was procedurally fair. This ground does not give rise to any error.
The Appellant claims that her date of termination is incorrect and that she should therefore be reinstated as the Public Health Direction no longer applies. We are satisfied that the Appellant was provided with four weeks’ notice of termination on 17 March 2022. As the Respondent accepted in its Form F3 Employer Response, this meant that the Appellant’s employment with the Respondent came to an end on 14 April 2022, which was the same day on which the Public Health Direction was revoked. Notwithstanding the revocation of the Public Health Direction with effect from 1am on 14 April 2022, it remains the fact that the Appellant failed to comply with a lawful and reasonable direction given to her by the Respondent in late 2021 and her failure was ongoing at the time the Respondent made its decision, on 17 March 2022, to terminate her employment. The Commissioner was correct to conclude that this gave the Respondent a valid reason to terminate the Appellant’s employment. Further, the Respondent informed the Appellant in its letter of termination that she was “invited to apply for future roles with” the Respondent should the Public Health Direction be lifted or the Appellant elected to become vaccinated against COVID-19. As to the Appellant’s submission that she should have been offered other positions with the Respondent, the Public Health Direction applied, while it was in force, to the Respondent’s workplaces and prohibited unvaccinated employees such as the Appellant from working in those workplaces. We find that no arguable case of error is disclosed in the Appellant’s submissions.
Overall, it is clear that the basis on which the Commissioner reached his Decision discloses an orthodox approach to the determination of the Appellant’s application. The Commissioner applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence. We are satisfied that the Commissioner’s conclusions in relation to matters of fact appear to have been reasonably open to him on the evidence. For these reasons, we consider that the Appellant’s grounds of appeal do not have reasonable prospects of success and find that this weighs against the grant of an extension of time.
Prejudice to the Respondent
We do not consider that the grant of an extension of time would prejudice the Respondent’s capacity to respond to the appeal. However, the mere absence of prejudice is not necessarily a factor which weighs in favour of the Appellant’s application for an extension of time. We consider this factor is a neutral consideration.
Conclusion
We cannot identify any other consideration relevant to the application for an extension of time. Having regard to the matters discussed above, we are firmly satisfied that the interests of justice would not be served by granting an extension. The delay in filing the appeal was not insignificant, no satisfactory explanation for the delay has been provided, and the appeal does not have reasonable prospects of success.
The appeal was filed beyond the time prescribed by r.56(2)(a), and an extension of time has been refused. The appeal is therefore incompetent and is dismissed.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
11 November 2022, for the Appellant.
[1] [2022] FWC 2297.
[2] Rule 56(2) of the Fair Work Commission Rules 2013.
[3] [2014] FWCFB 4822; see also Panayiotou v University of Adelaide[2020] FWCFB 1692 at [8].
[4] Brisbane South Regional Health Authority v Taylor [1996] HCA 25, 186 CLR 541.
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