Jordan Clark v On The Run Pty Ltd
[2024] FWC 783
•27 MARCH 2024
| [2024] FWC 783 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jordan Clark
v
On The Run Pty Ltd
(U2024/2163)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 27 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances found – application dismissed.
Introduction
On 27 February 2024, Ms Jordan Clark made an application to the Commission for an unfair dismissal remedy. In her application, she contends that she was unfairly dismissed by the respondent on 12 October 2021, effective 15 October 2021. At the same time the applicant states that she was “officially terminated” on 8 November 2023.
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 respondent has raised two jurisdictional objections: that the application was not made within the 21-day period prescribed, and that the applicant was not dismissed. This decision deals with the first objection only. I will assume for that purpose that Ms Clark was dismissed as she contends.
If Ms Clark was dismissed effective 15 October 2021, then the period of 21 days ended at midnight on 5 November 2021. The application was therefore filed more than 2 years (844 days) outside the 21-day period. If Ms Clark was dismissed effective 8 November 2023, then the application was filed 90 days outside the 21-day period.
For the application to proceed, Ms Clark requires the Commission grant a further period of time within which to bring her application.
The question of whether to grant additional time was dealt with at a hearing on 27 March 2024, at which the applicant gave evidence in support of her application.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle[2].
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
the reason for the delay,
whether the person first became aware of the dismissal after it had taken effect,
any action taken by the person to dispute the dismissal,
prejudice to the employer (including prejudice caused by the delay),
the merits of the application, and
fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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.[3]
Factual Background
The applicant was engaged on a part-time basis as a console operator at convenience stores in Horsham, Victoria, commencing around 9 December 2020.
When the Victorian Government issued public health Directions requiring all employees be vaccinated against COVID-19 from October 2021, the respondent allowed employees to use their paid leave entitlements and then take unpaid leave. Ms Clark took up this option and has not returned to the workplace since 15 October 2021. She was on unpaid leave from 8 November 2021.
When the Directions were lifted on 24 June 2022, the respondent contacted the applicant inviting her to return to work on 11 July 2022. No response to that request was received. The respondent did not move to terminate the employment relationship at that time and made subsequent unsuccessful attempts by telephone and email to contact the applicant.
In communications around July-September 2023, the applicant made claims for various payments to be made to her and indicated a preference for communication through a specified email address. The applicant sought that the respondent pay her the income she would have earned if the Directions mandating the COVID-19 vaccination had never been implemented.
On 27 September 2023, in a telephone call followed up with an email, the respondent reiterated its preference that Ms Clark return to work and provided her with a roster and sought a response within 7 days as to whether she was prepared to work in accordance with her contract of employment.
Ms Clark neither responded to the request nor attended her rostered shifts, and on 10 October 2023 was advised that her absence from work was now considered to be unauthorised leave. Upon again not attending for rostered shifts on 20 and 21 October 2023, the applicant was asked to attend a paid meeting to discuss her employment on 26 October. The applicant responded that she was prepared to attend a meeting on 30 October. On 27 October 2023, after being sent details of the meeting the applicant advised that she would not return to work unless the respondent agreed to make certain payments to her and would not enter a room unless she could record the meeting. The applicant did not attend the meeting on 30 October 2023.
By letter dated 8 November 2023, the applicant was advised that she had until 10 November 2023 to confirm that she was ready, willing and would attend her scheduled shifts commencing 15 November 2023, and that if she failed to do so the respondent would proceed to terminate her employment on the basis that the applicant had abandoned her employment. The applicant did not respond.
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify 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]
The delay required to be considered 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.[5] 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.[6]
The applicant’s explanation for the delay is that she was “unable to initiate proceedings for unfair dismissal within the prescribed 21-day timeframe due to the necessity of awaiting legal clarification regarding the lawfulness of vaccine mandates. Subsequent determination that such mandates were deemed unlawful consequently rendered the termination unlawful as well.” The applicant said that she “had to wait for Supreme Court to deem vaccine mandates unlawful”. The applicant clarified that she was referring to a decision of the Supreme Court of Queensland in Johnston & Ors v Commissioner of Police.[7]
Having considered this material, I am not satisfied that the applicant has provided an acceptable explanation for the delay in lodging her application. In relation to the Johnston case, the Supreme Court of Queensland found that certain directions issued by the Queensland Commissioner of Police and the Director-General of the Queensland Department of Health requiring police and ambulance employees to receive COVID-19 vaccinations were of no force.
The Directions have no application to the vaccine mandate that applied to the applicant. The applicant’s employment was in Victoria and she was neither a police officer nor an ambulance employee. The Johnston decision does not render the Victorian Government mandates unlawful, and the Victorian mandates have not been otherwise successfully challenged in court. The Johnston decision does not affect the applicant’s circumstances, and accordingly waiting for that decision is not an acceptable reason for the delay. Even if it were somehow relevant, when the Applicant’s employment ended on 10 November 2023, the public health Directions were of no effect and there was no nexus between the legitimacy of the COVID-19 mandates and the filing of the application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application 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 had the benefit of the full 21-day period within which to lodge the application. The fact that she had the full period available to lodge the application is a factor that also weighs against a conclusion that there are exceptional circumstances.
Whether applicant took action to dispute the dismissal
If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put on notice the employer that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time.
Ms Clark did not take any steps, beyond lodging the application, to dispute her dismissal after it took effect.
Prejudice to the employer (including prejudice caused by the delay):
The period of delay is extensive and inherently involves at least the presumption of prejudice to the respondent. There is no evidence of any particular prejudice to the respondent and I have treated this as a neutral consideration.
Merits of the application:
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.
Before the merits of Ms Clark’s application can be considered, the respondent’s second jurisdictional objection will also need to be determined in her favour. The respondent maintains that it has not dismissed the applicant, but that the applicant abandoned the employment. The applicant does not dispute that by the letter dated 8 November 2023, set out above, she was advised that if she failed to confirm that she was willing to, and actually attend her scheduled shifts, the respondent would proceed to terminate the employment contract on the basis that the applicant had abandoned her employment. However, Ms Clark contends that she did not abandon her employment, but that her termination ‘stemmed solely from On The Run’s refusal to engage in negotiation.’
In essence, while the Victorian mandates were lifted as at 24 June 2022, the applicant was not prepared to return to work unless the respondent agreed to make a payment in respect of her protracted absence on unpaid leave. Even if there was some legal basis for such a claim (which is entirely unclear) it does not follow that her employment was terminated at the initiative of the respondent.
In these circumstances, on the basis of the limited material before the Commission at this time, I consider that the applicant has a very weak basis to claim that she was dismissed by the respondent on either 15 October 2021 or 8 November 2023. In relation to the claim of dismissal in October 2021, the respondent took active steps to seek her return to work.
In the circumstances, I consider that this weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Ms Clark’s claim. However, cases will generally turn on their own facts.
I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case. As there are no exceptional circumstances, no additional time can be allowed for Ms Clark to make her application. This means that Ms Clark is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
[1] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[2] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[5] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[6] 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].
[7] [2024] QSC 2.
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