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.

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.

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.

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.

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

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 3342
Decision Date: 20 DECEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission addressed an application filed by Karen O’Neill against Ability Options Ltd concerning alleged contraventions involving her dismissal. O’Neill, a former Disability Support Worker, claimed that her dismissal due to her employer’s requirement for COVID-19 vaccination or a medical exemption contravened her general protections under the Fair Work Act 2009. Ability Options Ltd argued that the dismissal was lawful, given the public health orders requiring vaccination for employees in the care and disability sector, and that O’Neill had failed to comply with the policy despite multiple opportunities. The primary legal issue was whether the Commission should grant an extension to the statutory 21-day period within which O’Neill had to lodge her application, as she filed it 10 days late.

The Commission assessed O’Neill's application for an extension under s.366(2) of the Act, considering various factors such as the reason for the delay, action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other employees. O’Neill argued that her medical conditions and personal stress due to the dismissal contributed to the delay, and that she was unaware of the time limit for filing the application. However, the Commission found that O’Neill did not provide credible evidence of her medical conditions or any other circumstances that would constitute exceptional reasons for the delay. Additionally, the Commission noted that O’Neill had not taken any steps to dispute her dismissal before filing the application, and that while Ability had been inconvenienced, this did not amount to the prejudice necessary to warrant an extension. The merits of O’Neill’s application were deemed lacking, as she had failed to submit the required follow-up exemption certificate despite multiple extensions granted by Ability. The Commission concluded that there were no exceptional circumstances justifying an extension to the statutory time limit, and dismissed the application.

The Commission’s decision highlights the stringent requirements for extensions under the Fair Work Act and the necessity for applicants to provide credible and compelling reasons for any delay in filing their applications. In this instance, O’Neill’s arguments did not meet the threshold for exceptional circumstances, leading to the dismissal of her application.

Orders