Leonora (Lola) Bartkus v The Commonwealth of Australia, as represented by the Australian Federal Police
[2022] FWC 1982
•27 JULY 2022
| [2022] FWC 1982 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leonora (Lola) Bartkus
v
The Commonwealth of Australia, as represented by the
Australian Federal Police
(U2022/6621)
| COMMISSIONER MCKINNON | SYDNEY, 27 JULY 2022 |
Application for an unfair dismissal remedy – extension of time.
Ms Leonora Bartkus worked for the Australian Federal Police (AFP) for almost 15 years. She was dismissed on 16 March 2022 for failing to comply with an AFP Commissioner’s Order on COVID-19 Vaccination (CO10) and a subsequent direction to receive a COVID-19 vaccination and provide the AFP with proof of vaccination by 24 January 2022.
On 24 June 2022, Ms Bartkus applied for an unfair dismissal remedy. Such applications must be made within 21 days after the dismissal took effect or if there are exceptional circumstances, within such further period as the Commission allows.[1] The application made by Ms Bartkus is 11 weeks and 2 days late.
The question is whether additional time should be allowed to Ms Bartkus to make her application to the Commission. For the reasons that follow, I have decided not to allow additional time and to dismiss the application.
Extension of time
Under section 394(3) of the Fair Work Act 2009 (Cth) (the Act), the Commission can allow more than 21 days for a person to make an unfair dismissal application if satisfied that there are exceptional circumstances, taking into account:
a)the reason for the delay,
b)whether the person first became aware of the dismissal after it had taken effect,
c)any action taken by the person to dispute the dismissal,
d)prejudice to the employer (including prejudice caused by the delay),
e)the merits of the application, and
f)fairness as between the person and other persons in a similar position.
The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[2]:
“[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.”[3] [Emphasis added]
Relevant factors
Reason for delay: On 3 April 2022, Ms Bartkus completed her application for an unfair dismissal remedy. On 4 April 2022, she attended the offices of the Australian Federal Police Association (AFPA) and gave it to the receptionist. She asked the receptionist to “make a file of her claim” and provide it to Ms Megan Wardle, Industrial Officer. What she meant was that she could not convert the document to a “PDF file” and could the receptionist do that and then provide it to Ms Wardle for her to review and submit on her behalf. She did not make it clear to the AFPA that she expected the AFPA to file the application in the Commission on her behalf.
Ms Wardle was working from home at the time. When she next attended the office, she found the application from Ms Bartkus on her desk under a ‘sticky note’ that said, in words to the effect “Paperwork for Lola”. Lola is the name used by Ms Bartkus. Ms Wardle assumed that Ms Bartkus had filed the application in the Commission and provided her with a copy for her records. She thought no further of it and went about her work.
On 14 June 2022, Ms Bartkus sent an email to Ms Wardle asking about her application. She said that she had spoken to the Commission and that they could not identify a case in her name. Ms Bartkus asked Ms Wardle to provide her with information about her case.
Ms Wardle responded by email to Ms Bartkus on 15 June 2022 to say she had not received anything from the Commission either. She then looked into the matter further.
Ms Wardle spoke to the receptionist who told her that Ms Bartkus had attended the office to drop off her application. Ms Wardle finally realised that the document she had found on her desk was the original application that had never been filed. As Ms Wardle had not gone through the process with the Commission before, she had not found it odd that there had been no contact from the Commission about the application for more than two months after she assumed it had been filed, even though Ms Wardle was named on the application as the representative of Ms Bartkus. The AFPA did not then take any further steps in relation to the application. The application was instead filed nine days later by Ms Bartkus.
In short, the primary reason for delay is mistake: both Ms Bartkus and the AFPA wrongly assumed that the other had filed the application. The mistake arose because Ms Bartkus failed to give clear instructions to the AFPA about filing the application on her behalf. No reason is given for the additional nine‑day delay between discovery of the mistake and the filing of the application.
Whether the person first became aware of the dismissal after it had taken effect: Ms Bartkus knew about the dismissal at the time that it took effect.
Any action taken by the person to dispute the dismissal: Ms Bartkus communicated with Ms Wardle on 27 March 2022 and 1 April 2022 in relation to her proceeding with an unfair dismissal claim. She then completed her application and attended the offices of the AFPA to hand deliver the application to Ms Wardle. She did not advise the AFP that her dismissal was disputed. The AFP only became aware of the dispute on 1 July 2022 when it was served with the application.
Prejudice to the employer (including prejudice caused by the delay): The application is almost three months late. The AFP asserts no prejudice if the application proceeds other than having lost the general benefit of engaging with, and potentially resolving, the matter at an earlier time.
Merits of the application: The merits of the application are not strong. There is no dispute that Ms Bartkus was required to comply with directions and orders of the AFP Commissioner and that, in relation to COVID-19 vaccination, she did not do so. The materials suggest a procedurally fair process preceding the dismissal and an opportunity for Ms Bartkus to exhaust her leave entitlements before she was dismissed. The submissions in relation to the safety of COVID-19 vaccinations are unlikely to succeed given the weight of precedent on this issue in both the Commission and the courts. So it is for the submissions in relation to the financial consequences flowing from loss of employment – consequences likely to be attributed to the (no doubt difficult) choice made by Ms Bartkus to not be vaccinated against COVID-19 rather than to the AFP’s decision to dismiss. These matters are of course to be considered against the background of Ms Bartkus’ long period of service, her accrued level of skill and experience over time and other matters of relevance that may arise during the proceeding.
Fairness as between the person and other persons in a similar position: There is no material to indicate that fairness as between two or more persons is a relevant factor in this case.
Conclusion
I am satisfied that the mistaken assumptions of both Ms Bartkus and Ms Wardle about who did or was to file the application are exceptional circumstances. On balance however, I have decided not to allow additional time to Ms Bartkus to make her application.
While the mistake tends in favour of additional time, the subsequent failure to remedy the mistake for nine days without explanation tends against it. Ms Bartkus knew about the dismissal when it occurred. She had been very sick with COVID-19 before the dismissal but appears to have recovered by the time the dismissal took effect. The only action to bring the dispute to the attention of the AFP was the filing and service of the application itself. Neither Ms Bartkus nor the AFPA took any steps to pursue the application in the two months between when they assumed it had been filed and when they discovered it had not been. It is understandable that Ms Bartkus would not have known what to expect in this regard, but the AFPA is a professional association and should have taken proactive steps to follow up on her behalf. The merits of the case tend against the grant of additional time. The other relevant matters are either neutral or do not tend in favour of additional time being allowed. In the circumstances, I do not consider this an appropriate case where the discretion to extend time for the filing of the application should be exercised in favour of Ms Bartkus.
The application is dismissed.
COMMISSIONER
Appearances:
M Wardle of the Australian Federal Police Association for the applicant.
P Myrtle on behalf of the respondent.
Hearing details:
2022.
Sydney (by video):
July 26.
[1] Fair Work Act 2009 (Cth), s 394(2).
[2] [2011] 203 IR 1.
[3] Ibid [13].
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