Karen O'Neill v Ability Options Ltd

[2022] FWC 3342

[2022] FWC 3342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - General protections

Karen O’Neill
v

Ability Options Ltd

(C2022/6410)

COMMISSIONER YILMAZ MELBOURNE, 20 DECEMBER 2022

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances – application dismissed.

1. On 19 September 2022, Ms Karen O’Neill lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Ability Options Ltd (Ability).  Ms O’Neill commenced employment in 2008 with her employer’s predecessor and transferred her employment during the transmission of business in 2017. She held the position of Disability Support Worker until her employment came to an end on 22 August 2022.

1. Ms O’Neill contends that the employer’s directions to show evidence of vaccination against COVID-19 or to produce an exemption because of a medical contraindication was never part of her contract of employment and therefore an unreasonable requirement imposed on her. Despite this requirement, she obtained an exemption certificate which covered the period of 4 November 2021 to 4 May 2022. She submits despite this exemption she was prevented from working, and this, in her view, is discrimination. However, on expiry of her exemption, she failed to present to her employer an updated certificate.

1. Ability object to the general protections application on the basis that there is no merit and because it was made outside of the statutory 21-day period to make an application. 

1. Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 10 days after the 21-day statutory time limit.

Applicant’s submissions

1. Ms O’Neill submits that she is a single mother with seven children and five grandchildren, and since she could not work she had to find an alternative means to earn an income. Together with her medical condition she experienced severe stress, anxiety and depression to the point that she obtained medical treatment and presented to hospital after her termination of employment. She feels aggrieved that while she had to produce a medical exemption from her treating medical practitioner to comply with her employer’s policy she was prevented from working.

1. Ms O’Neill submits that her dismissal was a contravention of her general protections under the following provisions of the Act:

·   s.343 coercion - workplace rights

·   s.348 coercion – industrial activities

·   s.351 discrimination.

1. The basis for her allegations of contravention of general protections is that it was never part of her contract to have a mandatory vaccination, and to then lose her job is an unfair dismissal. Prevention to work when she presented an exemption certificate, she says is discrimination. Further, she states that failure to permit her to work is a form of bullying, harassment and coercion. She submits that she had a further exemption certificate but did not submit it as she considered there was no point as her employer assessed that it was too high of a risk for her to work while unvaccinated.

Respondent’s submissions

1. Ability submits that public health orders issued by the NSW Government required employees in the care and disability sector to be vaccinated. Its own policy required employees to provide evidence of vaccination or a relevant medical contraindication as prescribed. The policy was introduced after consultation with both employees and unions and it submits that it simply reflected its compliance with the relevant public health order. Ability confirmed that it was required to comply with Public Health (COVID-19 Care Services) Order (No 2) 2021, otherwise it would risk penalties for noncompliance. It further submits that it was very aware of Ms O’Neill’s recent diagnosis of cancer, anxiety and her other conditions. In spite of its receipt of her exemption certificate, it completed a risk assessment and determined the risk of infection was too high for both Ms O’Neill and the residents in the House to which she was allocated. It submits that given her exemption certificate, it made available in December 2021 alternative work that Ms O’Neill could complete in the safety of her own home. It submits that Ms O’Neill returned the computer and related equipment after several days unwilling to perform any further work from home.  

1. Prior to the expiry of Ms O’Neill’s exemption certificate, Ability state that it contacted her in March 2022 to ensure a follow-up certificate was arranged. Both parties were in communication with Ms O’Neill confirming her medical appointment in April 2022. In May 2022, Ability contacted Ms O’Neill again to check on the status of the exemption certificate and an extension was granted to the deadline as it was informed the medical practitioner was in the process of completing it. After Ms O’Neill again did not meet the deadline, Ability provided her with a show cause letter in June 2022. The show cause letter deadline was extended after a discussion with Ms O’Neill. Ms O’Neill was given two extensions to accommodate the provision of the exemption certificate until a certificate was presented for an entirely different condition and which did not meet the exemption criteria. After a further period of no contact from Ms O’Neill with a corrected certificate, Ability issued a letter of termination on 15 August 2022 and paid out her entitlements on termination of employment.

Consideration

1. General protections applications involving dismissal must be made within 21 days of the dismissal. However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

“(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where it was held that:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[2]

1. I now turn to the Ms O’Neill’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

1. The general protections involving dismissal application was lodged with the Commission on 19 September 2022, ten days late. Ms O’Neill submits she understood that she was dismissed on 22 August 2022 and confirmed receipt of her letter of termination of employment. The parties communicated prior to the dismissal regarding a follow-up exemption certificate, and she states that she was informed that should she not produce the certificate, her employment would be terminated.   

1. Ms O’Neill submits that she was unaware that she was required to submit her application within a 21-day limit. She also states that having been dismissed she suffered various medical conditions including anxiety, brain fog, panic attacks, sleep disorder and inability to remember dates and other key information.  

1. She further identified that she was still receiving medical treatment for cancer. In addition to these medical symptoms, she was stressed that her daughter was bullied at work and had to leave her employment also. Despite all of these challenges, she was working on building a business to generate income.

1. There must be a credible reason for the delay.[3] Ms O’Neill did not provide any corroborating evidence of her medical condition or other circumstances that prevented her from making the application within the required time frame.  

1. The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[4] In this instance, Ms O’Neill provided no evidence, except for one medical certificate on which she relied when I held a noncompliance hearing.

1. Further evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their application.[5] Again Ms O’Neill provided no corroborating evidence.

1. In relation to Ms O’Neill’s submission that she was unaware of the time limit, the authorities have settled the principle that ignorance of the statutory time limit is not an exceptional circumstance.[6]

1. For the above reasons I am not satisfied that Ms O’Neill has demonstrated credible reasons to be considered exceptional circumstances as required by this consideration for an extension of her application. However, the reasons for the delay are not the only consideration in an extension of time application.

Steps taken to dispute the termination

1. Both parties state that Ms O’Neill made no attempt to challenge her dismissal until she filed this application. On this basis this consideration does not weigh in her favour.

Prejudice to the employer

1. Ms O’Neill contends that there is no prejudice to Ability in a ten-day delay. Ability contends that the delay and the application itself has disadvantaged it because as a not-for-profit organisation, the application has placed on it “undue strain with regard to responding and appearances.”[7]          

1. While I accept that Ability have been inconvenienced and spent resources in attending hearings and responding, this is not characteristic of prejudice to weigh against an extension to the application. However, the authorities confirm a mere absence of prejudice is an insufficient basis to grant an extension, therefore this consideration is neutral.

Merits of the application

1. Ms O’Neill on reflection accepts she should have sent through her second exemption to Ability, however, at the time, she did not see the point as she was prevented from attending work because she remained unvaccinated. She nevertheless considers the requirement to be vaccinated inconsistent with her contract of employment and the way she was treated was discriminatory. She points out that she has not caught COVID-19, whereas she is aware that both employees and disability care residents, have contracted the virus. Ms O’Neill has personal objections to the vaccine, and she submits the requirement to be vaccinated to work is coercion. However, she did have a medical condition that entitled her to an exemption but did not provide the follow-up medical exemption certificate to her employer. Ms O’Neill states that she thought the certificate provided by her medical practitioner was incomplete when she did not meet her employer’s deadline, but also questioned the point of sending it through as she was prevented from working in any event. 

1. Ability submits that in New South Wales, the State Government introduced public health orders that required employees in the care and disability sector to be vaccinated before entering the workplace. It submits that its policy introduced after consultation with employees and unions reflected its legal compliance with public health orders which carried severe penalties for noncompliance. It further submits that it was very aware of Ms O’Neill’s recent diagnosis of cancer, anxiety and other conditions, so despite its receipt of her exemption certificate, it completed a risk assessment and determined the risk of infection was too high for both Ms O’Neill and the residents in the House to which she was allocated. It submits that given the exemption, it made available to Ms O’Neill suitable alternative work in December 2021 that she could complete at home. It submits that Ms O’Neill returned the computer and related equipment after several days unwilling to perform any further work from home.  

1. Prior to the expiry of Ms O’Neill’s medical contraindication exemption, Ability state that it contacted her in March 2022 to ensure a follow-up certificate was arranged. Both parties Ability and Ms O’Neill communicated and Ms O’Neill confirmed her medical appointment was scheduled in April 2022. In May 2022, Ability contacted Ms O’Neill again to check on the status of the exemption certificate and an extension was granted to the deadline as it was informed the medical practitioner was in the process of completing it. After Ms O’Neill again did not meet the deadline, Ability provided her with a show cause letter in June 2022. The show cause letter deadline was extended after a discussion with Ms O’Neill. Ms O’Neill was given two extensions to accommodate the provision of the exemption certificate until a certificate was presented for an entirely different condition that did not meet the exemption criteria. After a further period of no contact from Ms O’Neill, Ability issued a letter of termination on 15 August 2022 and paid out her entitlements on termination of employment.

1. I have confirmed that as at the date of Ms O’Neill’s termination of employment the Public Health (COVID-19 Care Services) Order (No 2) 2021 applied. This public health order applied to employees of residential aged care facilities and other workers in contact with persons with disabilities receiving aged care and disability services.  Having regard to the matters raised by the parties, I find that Ms O’Neill’s case is lacking in merit, particularly considering that had she provided the follow-up exemption certificate, her employment would not have been terminated. There were no contested facts, rather Ms O’Neill’s firm submissions concerned the unfairness of the public health order and her employer's insistence on compliance. She further submits that the health orders have since expired, and while that is the case, they did apply when Ability required from her an updated medical contraindication exemption.

Fairness between the person and other persons in a like position

1. Ms O’Neill referred to her hardship but did not address this consideration in the context of other persons in a like position. 

1. Ability reiterated the effort it took to provide extensions to Ms O’Neill to comply with the provision of her exemption certificate. It also referred to the obligation to comply with the public health orders that affected all of their employees.

1. Ability complied with the public health order in place at the time, and there is no contrary evidence that Ability treated Ms O’Neill differently from other employees that did not comply with the requirements. Even with the extensions granted to Ms O’Neill there is no evidence of any undue treatment to find in favour of an extension in this regard. 

Conclusion

1. In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

1. I have considered Ms O’Neill’s application for an extension of time considering her arguments against each consideration under s.366(2). I do not find that her arguments overall meet the requirements of exceptional circumstances against each relevant consideration in s.366 (2) to warrant an extension of time for her general protection application.  Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Ms K. O’Neill on her own behalf.
Ms K. Kean for the Respondent.

Hearing details:

15 December 2022
Melbourne (By Video using Microsoft Teams)

[1] [2011] FWAFB 975.

[2] Ibid at [13].

[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[4] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

[5] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].

[7] Respondent’s outline of submissions at Q1g.

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