Lisa O'Neill v Kikada Lane SE 2 Pty Ltd
[2022] FWC 893
| [2022] FWC 893 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lisa O’Neill
v
Kikada Lane SE 2 Pty Ltd
(U2022/732)
| DEPUTY PRESIDENT ASBURY | BRISBANE, 26 APRIL 2022 |
Application for an unfair dismissal remedy – Application filed outside 21 day period in s. 394(2) of the Act – Whether further period should be granted pursuant to s. 394(3) of the Act – Applicant refused to comply with vaccination policy imposed in response to Queensland Government Health Directive – No exceptional circumstances – Application for further period refused – Unfair dismissal application refused.
Background
On 13 January 2022, Ms Lisa O’Neill (the Applicant) applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the FW Act). The Applicant’s employment with Kikada Lane SE 2 Pty Ltd (the Respondent) was terminated on 16 December 2021. Section 394(2) of the FW Act states that an unfair dismissal application 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 21-day period ended at midnight on 6 January 2022. The application was filed seven days outside the time required by s. 394(2). For the application to proceed, it is necessary that a further period for the application to be made is granted by the Commission under s. 394(3) of the FW Act.
The Respondent is a dental clinic (healthcare facility) providing practice. The Applicant was dismissed for failing to comply with a COVID-19 Vaccination Policy implemented by the Respondent, in accordance with Queensland Public Health Orders.
On 21 January 2022, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide reasons as to why a further period should be granted, having regard to the matters in s.394(2) of the FW Act. The matter was subsequently allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether a further period should be granted. A hearing was conducted by telephone on 16 February 2022.
Leave was granted to the Applicant to amend her Form F2 Application by removing the reference to Kikada Lane Dental as the Respondent and replacing that reference with Kikada Lane SE2 Pty Ltd T/A Dr Smile Family Dentist Southport. The Applicant gave evidence at the hearing and made submissions in support of a further period being granted. The Respondent was represented by its Director of Operations and HR Ms K Hughes.
Approach to deciding whether a further period should be granted
Legislation
The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may include a single exceptional factor, 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.
The requirement that there be exceptional circumstances before time can be extended under s 394(3) of the FW Act contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, if in all the circumstances, the Commission considers that it is “fair” to do so.
Section 394(3) requires that, in considering whether to grant a further period, the Commission must take into account the following:
(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 requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the present application.
Reason for the delay
As previously noted, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 6 January 2022. The delay is the period commencing immediately after that time until 13 January 2022, the date the application was made, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]
In the present case, the was the period between 6 and 13 January 2022. The Applicant offered several reasons for the delay in making her application, which can be summarised as follows. The Applicant stated that her understanding was that she was required to lodge her application within 21 “business days” of her dismissal (excluding weekends and public holidays) and had worked out that she had until 14 January 2022 to make the application. The Applicant explained that the reason she thought the relevant period was 21 business days was because the working days listed on the Commission website are Monday to Friday. The Applicant recorded in the Form F2 that the application was being made within 21 calendar days of [her] dismissal taking effect. The Applicant’s evidence is that she selected “yes” on the form because she genuinely understood that she was filing her application within the 21 working day “cut off time”.
Additionally, the Applicant said that she was busy with physiotherapist and doctors’ appointments as she is currently on workers compensation for a neck injury that occurred at work on 8 December 2021 when she lifted a heavy box. In her written material the Applicant provided background to the incident causing her injury and her Workers’ Compensation application, which was lodged on 14 December 2021, before her dismissal took effect. The Applicant also provided copies of Workers’ Compensation certificates dated 6 December 2021 and 14 December 2021 in addition to letters from her physiotherapist. The documentation indicates that the Applicant attended her physiotherapist four times between 16 December 2021 and 6 January 2022.
A physiotherapists report dated 6 January 2022, tendered by the Applicant, stated that she had been progressing well and had almost fully restored her cervical range of movement but had a few sleepless nights after doing cleaning at home and found lifting more than a few kilograms to be painful. The report also stated that the Applicant would be progressing to more exercise-based rehabilitation and would do a light gym session the next week.
Further, the Applicant explained that she is a single parent to three children and was finding it difficult to “keep track of everything and keep on top of priorities”. The Applicant said that she was preparing for the busy Christmas season and as her three-year-old child’s kindergarten was closed during the Christmas and New Year period, she was required to care for her child at this time. The Applicant said that she had recently moved and was surrounded by boxes, was supervising her three-year-old and suffering pain from her neck injury and found it difficult to sit in front of the computer to upload documents and compete her application.
I am not satisfied that the Applicant has provided an acceptable or reasonable explanation for the delay. Ignorance of the timeframe is not, of itself, an unusual or abnormal circumstance which would justify an extension of time.[5] Question 1.5 of the Form F2 application clearly states whether the application is being made within “21 calendar days of your dismissal taking effect”. I also reject the Applicant’s contention that the reason she was under the (incorrect) assumption that the 21 days referred to business days, was because the Commission’s website lists its working days as Monday to Friday. The operating hours of the Commission are entirely unrelated to the statutory period for lodging an unfair dismissal application.
The Applicant provided no medical or other evidence that her injury played any part in the delay in lodging her unfair dismissal application. The Applicant accepted a proposition at the hearing, that she was not asserting her injury rendered her incapacitated to the extent she was unable to file an unfair dismissal application within time, and instead asserted that she was preoccupied with attending appointments in relation to the injury and misunderstood the actual timeframe.
The Applicant also gave evidence that at the time her application was filed, she was attending appointments with her physiotherapist twice a week. I do not accept that this is an exceptional circumstance. Nor do I accept that it explains the delay of seven days. I note there is nothing in the Workers’ Compensation certificates produced by the Applicant, or letters from her physiotherapist, to suggest that her neck injury would have prevented her from being able to prepare and lodge documents in the Commission. There is no evidence that the Applicant attended her physiotherapist during the period of the delay and the report of 6 January 2022 indicates that her condition had improved. Further, while I accept that the Applicant may have been busy looking after children and preparing for the Christmas period, this is also not an exceptional circumstance.
It is also the case that prior to her dismissal, the Applicant was able to draft lengthy correspondence to the Respondent, containing her personal views about COVID-19 vaccinations and research that the Applicant had undertaken on the internet, with the last piece of correspondence being sent on 26 December 2021. This indicates that the Applicant was not incapacitated by her injury to the extent that she could not have filed her application within the required time. The lack of an acceptable reason for the delay in filing the application is a matter that weighs against a further period being granted.
Whether the Applicant first became aware of the dismissal after it took effect
The Applicant stated in her Form F2 that she was notified of her dismissal on 2 November 2021 and that it took effect on 16 December 2021. It appears that the letter of 2 November was a notification that the Applicant would not be allowed to return to work, and would be considered to be on unpaid leave, until she received her first vaccination and submitted proof of this. The date the Applicant was notified of her dismissal was 14 December 2022 when the Applicant was given a letter which stated her employment was being terminated effective 15 December 2021. It is also the case that the Respondent’s COVID – 19 Vaccination Policy clearly states that where an employee is not fully vaccinated the result may be the cessation of employment.
Accordingly, I am satisfied that the Applicant was aware of her dismissal on the date it took effect and that she had the benefit of the full 21-day period to make her application. This factor weighs against the exercise of the discretion to grant a further period for the application to be made – albeit only slightly.
Any action taken by the Applicant to dispute the dismissal
The Applicant accepted at the hearing that she took no steps to dispute her dismissal apart from filing an unfair dismissal application. However, it is also the case that the Applicant corresponded extensively with the Respondent indicating her opposition to its vaccination mandate in very strong terms.
While the Applicant did not put the Respondent on notice that she intended to file an unfair dismissal application, it is arguable that the application would not have come as a surprise given the many legal arguments advanced by the Applicant in support of her position, prior to her dismissal. This weighs in favour of a further period being granted, albeit only slightly.
Prejudice to the Respondent
There is no evidence of prejudice to the Respondent beyond being required to defend an unfair dismissal application. This is a neutral consideration.
Merits of the application
In the matter of Kornicki v Telstra-Network Technology Group[6] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
The matters the Commission is required to consider in deciding whether a dismissal is unfair, include the reason for the dismissal, the way it was carried out, the effect on the person who was dismissed and other relevant matters. A dismissal may be unfair because of any one or more of these considerations.
In the present case, the Respondent operates a dental clinic which means that its employees work in a health setting. As such, the Respondent was, and continues to be, subject to public health orders, which require that employees are vaccinated against the COVID – 19 virus or hold a medical exemption. The Respondent was accordingly prohibited by law from allowing the Applicant to attend the workplace unless she provided the required proof of vaccination and had the Respondent allowed the Applicant to attend for work it would have broken the law.
The Applicant does not dispute that the Respondent was subject to Public Health orders requiring workers to be fully vaccinated with two doses of a COVID-19 vaccination, and that the Respondent would be in breach of this requirement to have a worker on its premises who was unvaccinated. The Applicant also accepted that the Respondent had introduced a COVID-19 vaccination policy in response to this requirement, although the Applicant did not agree with the policy. The Applicant also does not dispute that as a Medical Receptionist she could not perform her role remotely and was required to be in the workplace.
The Applicant made an undoubtedly difficult choice to refuse to comply with the policy, but it was a choice, nonetheless. The Applicant was within her rights to make that choice, but the consequence was that she rendered herself incapable of performing her role. Contrary to the Applicant’s assertions in her correspondence to the Respondent and other material appended to her application, she was not coerced, forced to undergo a medical procedure nor directed to self-harm against her will. The vaccination policy was not unlawful and did not constitute a breach of privacy law.
At the hearing, the Applicant gave evidence that she did not wish to be vaccinated because she had heard of people dying from it or being permanently disabled, and that the Applicant had sought from the Respondent a guarantee that if she became sick or died from the vaccine the Respondent would provide compensation to provide for the future care of her children and that this was not agreed to by the Respondent. Correspondence sent from the Applicant to the Respondent prior to her dismissal also indicated the Applicant was not against vaccination but wanted to wait for the availability of the Novavax vaccine.
The Applicant also gave evidence at the hearing that she suffered from Anaphylaxis and this was another reason why she did not wish to be vaccinated at the time of her dismissal. In response to questions from me, the Applicant accepted that the policy indicated she could apply for a medical exemption and the Applicant accepted that she did not attempt to obtain a medical certificate evidencing a contraindication to the vaccine. The Applicant also stated this was because her Practice Manager told her this would not make a difference and that a colleague had provided a medical certificate in support of a medical exemption and was refused an exemption.
The Respondent disputed that the Applicant had raised any medical condition or contraindication to the vaccine in support of obtaining an exemption to the vaccine requirement. In response to a question from me as to what the Applicant considered the Respondent could have done in relation to her employment in the circumstances, the Applicant said she has heard of people getting a medical certificate and taking daily COVID tests and was not offered this option. The Applicant did not give any evidence to support the proposition that she would have taken leave until a vaccination she was prepared to receive was available.
The Applicant’s failure to comply with the vaccination requirement, was prima facie a valid reason for dismissal. While there may be other bases upon which the dismissal could be found to be unfair, there is nothing in the application and supporting material of any apparent merit to weigh in favour of a further period to make the application being granted. At best, the merit of the Applicant’s case is a neutral consideration.
Fairness between the Applicant and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[7]
I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons. Additionally, neither party brought to my attention any relevant matter concerning this consideration. It is apparent that the principal reason for the delay in this case is the Applicant’s mistaken view that she had 21 business days to file her application. There are many cases where employees who have made an error of this kind, are not granted a further period and a refusal of the present application is consistent with these cases.
Conclusion
Having regard to the matters in s 394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The substantive reason for the delay is a misunderstanding on the part of the Applicant in relation to how the 21-day period is calculated. That is not an exceptional circumstance. Other reasons nominated by the Applicant do not explain the delay and there is no evidence that her injury incapacitated the Applicant to the point that her ability file an application within the required time was affected. Christmas is not an exceptional circumstance and while I acknowledge the difficulty of supervising a three-year-old child, the fact that childcare centres are closed during that period is also not exceptional.
The Applicant was aware of the dismissal when it took effect, and while there is no apparent prejudice to the Respondent, this factors weighs against a further period being granted, however slightly. That the Applicant was disputing her dismissal would likely have come as no surprise to the Respondent, and while this weighs slightly in favour of the grant of a further period it is not determinative. The merits of the application are not so strong as to outweigh the lack of exceptional circumstances related to other considerations. I am also of the view that, on the evidence in this case, to grant the Applicant a further period, would not be consistent with other cases where extensions have not been granted on grounds similar to those raised by the Applicant.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time. The Applicant’s unfair dismissal application is therefore dismissed. An Order[8] to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on her own behalf.
Ms K Hughes for the Respondent.
Hearing details:
16 February.
2022.
By telephone.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Rose v BMD Constructions Pty Ltd[2011] FWA 673
[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[7] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[8] PR740623.
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