Kerry Aylett v Eldercare Australia Ltd

[2021] FWC 6294

[2021] FWC 6294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Kerry Aylett
v
Eldercare Australia Ltd
(U2021/9224)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 23 NOVEMBER 2021

Application for an unfair dismissal remedy – extension of time – stress and anxiety following dismissal - reliance on legal advice – discretionary considerations – no exceptional circumstances – application dismissed

[1] On 14 October 2021 Kerry Aylett (Ms Aylett or the applicant) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of employment by Eldercare Australia Ltd (Eldercare or the employer) on 22 September 2021.

[2] Ms Aylett’s application was made twenty-two days after dismissal took effect, being one day beyond the 21-day statutory time-limit. For the application to proceed, it requires an extension of time. Ms Aylett seeks that extension.

[3] The matter was allocated to me to determine whether an extension should be granted. This decision deals with that issue.

[4] I issued directions on 25 October 2021. Information about an extension of time and factors the Commission takes into account were provided to the parties.

[5] Ms Aylett filed materials in advance of the hearing. Eldercare filed a response.

[6] I heard the matter by video on 16 November 2021.

[7] Ms Aylett was self-represented as was Eldercare.

[8] Ms Aylett gave evidence on her witness statement.

[9] Following the hearing I reserved my decision.

Facts

[10] I make the following findings.

[11] I do so in the context of many aspects of Ms Aylett’s evidence about how her application came to be filed and whether she knew the application to be out of time to be inconsistent, confused and confusing. Ms Aylett’s recall was poor and when presented with documentary evidence, her oral evidence was inconsistent. Overall, Ms Aylett’s oral evidence was unsatisfactory and, in relation to the making of her application, implausible given her unreliable recall and inconsistencies. I make findings largely on the basis of the documentary evidence where there is inconsistency with oral evidence.

[12] Eldercare provides aged care services including in Adelaide, South Australia.

[13] Ms Aylett lives in Adelaide. Until dismissed, she was employed by Eldercare as a domestic assistant.

[14] In August and September 2021 a dispute arose between Ms Aylett and Eldercare concerning a COVID-19 vaccination mandate for staff working in residential aged care facilities following an announcement by the Australian government and a subsequent direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA).

[15] Ms Aylett elected not to be vaccinated.

[16] By letter dated 14 September 2021, Eldercare advised Ms Aylett that she would be suspended without pay from 15 September 2021 for failure to provide evidence of vaccination. She was directed to provide evidence of vaccination or an entitlement to an exemption by 21 September 2021.

[17] Ms Aylett continued to elect not to be vaccinated.

[18] On 22 September 2021 Eldercare advised Ms Aylett that her employment was “terminated without further notice effective from today, 22 September 2021, due to failure to follow reasonable direction”.

[19] Ms Aylett was stressed and anxious about her employment in the lead up to dismissal and following dismissal. Prior to dismissal she consulted her general practitioner on three occasions (30 August, 6 September and 13 September 2021). Following dismissal, she consulted her general practitioner on 11 October 2021.

[20] On 13 October 2021 Ms Aylett sought legal advice about her unfair dismissal rights. She telephoned a free community legal service (Uni SA Legal Advice Clinic) and arranged to meet the following day.

[21] On the morning of 14 October 2021 Ms Aylett met with two legal advisers from the Legal Advice Clinic. She was told of unfair dismissal rights. She wanted to proceed. The two advisers prepared an unfair dismissal application for Ms Aylett. That afternoon (14 October 2021 3.17pm) the legal advisers sent it to her to sign and lodge. The covering email read: 1

“Hi Kerry,

Thank you for attending the law clinic today.

It was lovely to meet you.

Sam and Lauren have been hard at work on your Fair Work application for Unfair Dismissal.

The application has been completed by Sam and Lauren. I think you just have to add some finishing touches (like your signature).

Also, you will need to pay the $74.50 application fee. There is a waiver application form if you would like to apply for an exemption from this fee.

Finally, the Application will refer to Annexures. It’s important you attach these to the Application.

Please apply to the FWC today. The window to apply closes at the end of the day. So, you don’t have much time.

All the best.

If you have any questions, comments or concerns, please do not hesitate to contact us.”

[22] Ms Aylett, with the assistance of her daughter, read the draft application but had difficulty completing the “finishing touches”. At 3.54pm she emailed the legal advisers: 2

“Lauren or Sam can u please ring me, I’m having trouble filling this form out”

[23] One of the legal advisers immediately rang Ms Aylett and provided assistance over the telephone.

[24] At 4.38pm that day (14 October 2021) Ms Aylett, with the assistance of her daughter, completed, signed and dated the unfair dismissal application (F2) and sent it electronically to the Commission under cover of an email from her personal email address. The covering email stated:

“PLEASE SEE ATTACHED. FORM F2 APPLICATION, FEE WAIVER APPPLICATION AND ANNEXURES 1-4. Kind regards. URGENT APPLICATION DUE TODAY!! Kerry Aylett.”

[25] Question 1.5 of the form F2 was answered by indicating that Ms Aylett was filing within 21 days of her dismissal taking effect.

[26] The Commission’s directions of 25 October 2021 informed Ms Aylett that her application appeared to be out of time and required an extension of time.

Consideration

[27] Section 394(3) of the FW Act provides:

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[28] Ms Aylett’s application can only proceed if she can establish that “exceptional circumstances” exist within the meaning of section 394(3).

[29] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.³

[30] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.⁴ A decision whether to extend time under section 394(3) involves the exercise of a discretion.⁵

[31] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.”6

[32] The principles of Nulty have been cited with approval by subsequent full benches of the Commission. 7

Status of the application

[33] Ms Aylett’s application is out of time and can only proceed if an extension is granted.

[34] The 21-day statutory period after Ms Aylett’s dismissal took effect expired on 13 October 2021. That date is twenty one calendar days after her dismissal took effect. As Ms Aylett’s dismissal took effect on 22 September 2021, the first of those twenty one days is 23 September 2021. Counting forward, the twenty-first of those days is 13 October 2021.

[35] The statutory requirement (section 394(2)(a)) is that an application “must” be made “within 21 days after the dismissal took effect” (emphasis added). What is required is lodgement “within” 21 days, not “after” 21 days or on the day after 21 days.

[36] Having filed her application on 14 October 2021, Ms Aylett’s application is one day out of time.

[37] I now consider each of the factors in section 394(3).

Reason for the delay (section 394(3)(a))

[38] The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation. 8 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.⁹ 

[39] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.¹⁰ The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.¹¹

[40] Ms Aylett waited until 13 October 2021 to source advice on her unfair dismissal rights. That was the twenty first day after her dismissal took effect. She did not receive advice until the following day, 14 October 2021, which was the twenty-second day after dismissal.

[41] The reason advanced by Ms Aylett for the delay in taking advice is that she was unwell due to stress and anxiety following dismissal and only “got my head together” 12 after seeing her general practitioner on 11 October 2021.

[42] In support of this submission Ms Aylett submitted a letter from her general practitioner that she had requested for the purposes of these proceedings. It is dated 3 November 2021. It reads:

“To Whom It May Concern

I am a General Practitioner and have been asked to provide evidence for Ms Aylett with regards to her impact statement through Fair Work Australia. I have consulted with her several times over the past 2 months regarding this matter.

She presented to me on the following dates this year: 30th August, 6th September, 13^th September and the 11th of October. She reported symptoms that fit with a diagnosis of an Adjustment Disorder in the context of the mandated Covid vaccine.

Yours sincerely,
Dr George Choimes BMBS FRACGP”

[43] Dr Choimes was not called to give evidence. There is nothing before me to identify what the practitioner means by an “adjustment disorder in the context of the mandated Covid vaccine” let alone what impact such a disorder had (if any) on Ms Aylett’s capacity to inform herself of her rights, cognitively process advice or manage stress and anxiety. Nor is there evidence how Ms Aylett’s medical condition or disorder affected her capacity before 11 October compared to after 11 October.

[44] Whilst relevant, the letter from Dr Choimes is an insufficient basis to conclude that Ms Aylett was unable to take advice on or exercise unfair dismissal rights prior to 11 October 2021.

[45] I am therefore left with Ms Aylett’s evidence that she was stressed and anxious until after seeing Dr Choimes on 11 October 2021. Despite my reservations about other aspects of Ms Aylett’s evidence, I accept she was stressed and anxious in this post-dismissal period and felt in better “head space” after seeing her doctor on 11 October 2021.

[46] However, a dismissed employee experiencing stress and anxiety after being dismissed is common, not unusual. Without more, it is not an exceptional circumstance. 13 In the case of Ms Aylett, to the extent stress was a product of being dismissed, the dismissal was not suddenly sprung on her. In evidence she put it this way; “leading up to this, I knew what was coming”.14 Further, Ms Aylett had experienced stress prior to dismissal once advised by Eldercare of the vaccination mandate and then suspended from 14 September 2021. She consulted her general practitioner three times in the months prior to being dismissed.

[47] Weighing in Ms Aylett’s favour is that she moved promptly after 11 October 2021 to obtain advice (making a telephone call on 13 October) and promptly (the same day, being 14 October) after receiving advice to file the claim. However, weighing against the reasonableness of the delay is Ms Aylett’s evidence that, at the time of dismissal, she believed her dismissal unfair but “didn’t think about” making a claim and that doing so was “the furthest thing from my mind until I saw my doctor”. 15

[48] Overall, the reason advanced by Ms Aylett that she was not well enough to source advice on unfair dismissal rights until after 11 October 2021 is not made out and does not weigh in favour of a finding of exceptional circumstances.

[49] I add two final observations on this issue.

[50] Although Ms Aylett did not advance her case on the basis of representative error, it appears on the face of the Legal Advice Clinic’s email to her at 3.17pm 14 October 2021 that the advisers were in error in advising that “the window to apply closes at the end of the day”. I have no evidence as to why this was said or whether it was a calculation error on their part. In any event, any such representative error cannot explain the delay given that the application was filed the same day this advice was sought and received.

[51] Further, for the same reason I need not deal with the inconsistent and confused evidence from Ms Aylett about whether at the time of filing she believed her application to be in time or out of time. The state of Ms Aylett’s knowledge about that matter, whatever it was, did not contribute to the delay. She filed the day she secured advice from her legal adviser but, for reasons mentioned, her delay in doing so does not weigh towards an exceptional circumstance.

Awareness of the dismissal taking effect (section 394(3)(b))

[52] Ms Aylett was aware from 22 September 2021 that her employment was terminated with immediate effect that day. For at least the week prior she was on formal notice that this was a possibility should she not produce evidence of vaccination or an entitlement to an exemption.

[53] Ms Aylett was also in no doubt as to the stated reason for dismissal.

[54] That she was well aware of the dismissal taking effect and its reason makes this a neutral consideration and does not weigh in favour of an extension of time.

Action taken to dispute dismissal (section 394(3)(c))

[55] Ms Aylett disagreed with the vaccination mandate and prior to dismissal the employer was on notice of the views held by Ms Aylett.

[56] Although Ms Aylett did not correspond further with the employer post-dismissal and before lodging her application, the grounds of the application ought not have been a surprise to Eldercare.

[57] This is a neutral consideration.

Prejudice to the employer (section 394(3)(d))

[58] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances. 16

[59] Eldercare submit that it would incur prejudice including by having to defend a late claim.

[60] A claim would have to be responded to, involving time and cost. That said, the nature of the prejudice in this matter is not unique.

[61] However, the absence of prejudice would not itself be a reason to grant an extension.¹⁷

[62] This is a neutral consideration.

Merits of the application (section 394(3)(e))

[63] A hearing on merit will necessarily concern whether Eldercare issued a direction that was lawful and reasonable, and whether in refusing to be vaccinated against COVID-19 Ms Aylett acted in a manner inconsistent with her obligations as an employee.

[64] Ms Aylett’s application is not an explicit challenge to the lawfulness of the vaccination mandate but in part a claim framed around reasonableness of decisions made by her then employer.

[65] As I have not heard evidence or submissions on these questions, for the purposes of considering this extension of time request, I consider the merits of the application to be a neutral consideration.

Fairness between persons in similar position (section 394(f))

[66] No evidence or submissions from Ms Aylett or Eldercare raise issues of fairness with and between other persons.

[67] In these circumstances, this is not a relevant factor.

Conclusion

[68] Weighing in Ms Aylett’s favour is that the delay period is short, one day.

[69] However, that factor alone cannot constitute an exceptional circumstance. The statute requires all relevant circumstances to be considered. It is not premised on the proposition that a short period of delay warrants an extension of time. To do so would be to subvert the statutory intent that the period for lodgement be within twenty one days and not more, save for exceptional circumstances.

[70] No circumstances weigh in favour of a conclusion of exceptional circumstances, individually or in combination.

[71] Considered overall, I am not satisfied that exceptional circumstances exist. As recently noted by a full bench of the Commission, that bar is high, and late filing should not be encouraged. 18 Whilst Ms Aylett was stressed after her dismissal, she was of the view that she was unfairly dismissed immediately upon dismissal but nonetheless delayed until twenty one days later to contact a legal adviser and twenty two days later to secure legal advice. The evidence, medical or otherwise does not establish exceptional circumstances. She filed the same day as she obtained legal advice, and in that sense moved promptly at that time. However, by then, she was already out of time.

[72] There being no exceptional circumstances, the time for lodging the claim cannot be extended.

[73] As Ms Aylett’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order¹⁹ to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

K Aylett, on her own behalf

M Stone, on behalf of Eldercare Australia Ltd

Hearing details:

2021
Adelaide (by video conference)
16 November

Printed by authority of the Commonwealth Government Printer

<PR735596>

 1   A13

 2   ibid

3 Smith v Canning Division of General Practice[2009] AIRC 959

4 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

5 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

6 [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 7   John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]

 8   Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]

9 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288 at [35]-[45]

10 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

11 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

 12   Audio transcript 16.11.21 10.28ame

 13   Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [62]

 14   Audio transcript 16.11.21 11.10am

 15   Audio transcript 16.11.21 10.30am

 16   Brisbane South Regional Health Authority v Taylor [1996] HCA 25

17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 18   Skinner v The Hospitals Contribution Fund of Australia Ltd t/a HCF[2020] FWCFB 6882 at [38]

19 PR735597