Lorraine Rita Leonard v Coles Pty Ltd
[2022] FWC 2166
•24 AUGUST 2022
| [2022] FWC 2166 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lorraine Rita Leonard
v
Coles Pty Ltd
(U2022/7188)
| COMMISSIONER HAMPTON | ADELAIDE, 24 AUGUST 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – not satisfied that exceptional circumstances exist –extension declined – application dismissed.
What this decision is about
This decision concerns an application by Lorraine Rita Leonard (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).
Ms Leonard’s employment with Coles Pty Ltd (Coles or Respondent) commenced on 14 October 2010. Ms Leonard was advised by way of a letter dated 24 May 2022 that her employment would be terminated with 4 weeks notice. Although the correspondence stated that the dismissal would take effect on 21 May 2022, this was an error. The 4 weeks notice in fact concluded on 21 June 2022. The dismissal occurred in the context of a Covid-19 vaccination policy (policy) requirement introduced by her employer and Ms Leonard’s non-compliance with the policy. In these circumstances, the Applicant was not permitted by Coles to attend the workplace and perform work during the notice period. The Applicant was employed as a part-time night fill worker at the Coles Murray Bridge Green store.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 17 July 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy 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). Adopting 21 June 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 12 July 2022.[1] The application was therefore filed 5 days after the 21-day limit. I will return to the date stated in the dismissal communication as part of the consideration of this matter. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). The Respondent opposes this request.
The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[2]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Ms Leonard provided a written summary of her position,[3] and gave sworn evidence. The Respondent made a comprehensive written submission and Mr Thomas, Store Manager of the Coles Murray Bridge Green store, provided a witness statement.[4] Mr Thomas’s evidence was not disputed, and he was not required to give further evidence.
As will become clear, I have determined that the later date of effect for the dismissal should be used; namely, 21 June 2022. Further, having assessed all the circumstances of this matter and the relevant statutory considerations I have not found exceptional circumstances and accordingly there is no basis to grant an extension of time. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
I found the evidence of Ms Leonard to have been given openly and honestly. I generally accept her evidence about the objective facts, however the recall of the precise dates and sequence of some events was not always clear.
To the extent that Ms Leonard made statements about the reasonableness or otherwise of the vaccination requirement I have treated these as submissions.
Mr Thomas’s evidence went solely to the mistake in the date of effect stated as part of the communication of the dismissal. This was not in dispute.
Given the nature of the present proceedings, it is not necessary to comprehensively deal with the events surrounding the introduction of the policy or the substance of the competing positions about its status.
The sequence of events associated with the dismissal and leading to the lodgement of this application
The policy was introduced on 25 January 2022.
Ms Leonard was first advised that her employment was at risk in a letter dated 2 May 2022. The letter set out a discussion with the Applicant on 11 April 2022 regarding the policy requirements, an email reminder sent on 19 April 2022, and notice that should she not comply with the policy by 9 May 2022 disciplinary action up to and including termination of employment may result.
Before the dismissal, Ms Leonard contacted various bodies and agencies to enquire about her position considering the policy. These included management at Coles, her Union, the Fair Work Ombudsman (FWO), her local Member of Parliament and some legal firms. Ms Leonard did not receive “the advice needed.” Ms Leonard understood that the FWO indicated that she should contact them “once I was terminated”.
I accept Ms Leonard’s evidence that she was not advised of the 21-day initial time limit at that time. I observe that this was prior to any dismissal taking place.
On 24 May 2022, Mr Thomas sent the following correspondence by email to Ms Leonard:
“… …
Dear Lorraine
RE: TERMINATION OF EMPLOYMENT
We refer to our previous correspondence of 17 May 2022 ('Show Cause Letter') relating to your ongoing non-compliance with the Coles COVID-19 Vaccination Policy ('Vaccination Policy').
Despite having been issued with a lawful and reasonable direction prior to the Show Cause letter, you have failed to demonstrate compliance with the Vaccination Policy and demonstrate that you are ready, willing and able to attend for work.
As set out in the Show Cause Letter, Coles made it clear that your ongoing refusal to comply with the Vaccination Policy and ongoing failure to comply with the lawful and reasonable direction was sufficiently serious to warrant the termination of your employment.
You were required to attend a virtual meeting on 24 May 2022 to give you a final opportunity to show cause as to why your employment should not be terminated.
You did not attend this meeting and did not provide any further information for Coles to consider.
After consideration of the information available, the decision has been made to terminate your employment with Coles Supermarkets Australia Pty Ltd. This letter confirms this decision in writing and provides you with four weeks' notice of the termination of your employment. Accordingly, your employment will cease on 21 May 2022.
Given your non-compliance with the Vaccination Policy, you are unable to attend your place of work and perform work during the period of notice.
Any employment entitlements owing will be paid to you on termination.
I remind you that you have access to free and confidential counselling via our Employee Assistance Program, provided by Converge International. The number for this service is 1300 687 327.
Yours sincerely,
… ...”[5]
I find that this was emailed to her private email address and that Ms Leonard had access to the email. However, Ms Leonard was not aware of the dismissal until she received a posted copy of the email on 27 May 2022, when she accessed her post office (PO) box.
Ms Leonard was distressed because of her dismissal. In the context of this and her other circumstances, Ms Leonard initially decided against contesting her dismissal and did not seek further assistance from the FWO (or any other source) at that time.
Ms Leonard cares for, and home schools, 3 children and has some involvement in a private business activity.
On Friday 15 July 2022, some 7 weeks after she was aware of the dismissal, Ms Leonard contacted the FWO and was advised to approach the Commission. At this point she was aware of the 21-day initial time period and the need to make an application to the Commission. The FWO provided some further information by email that day.
The application was lodged with the Commission by email on 17 July 2022.
Based upon the evidence taken at its highest, the substantive reason why the application was not lodged on time was that Ms Leonard was unaware of the time limit to make the application and asserts that none of the organisations she sought assistance from prior to her dismissal brought the time limit to her attention. Further, it is evident that Ms Leonard initially decided against contesting the dismissal and there is also an absence of a sense of priority and due diligence being given to the matter by Ms Leonard.
I will deal further with the explanation for the delay itself as part of the consideration of this matter.
Should an extension of time be granted?
The 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 stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[7]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[8] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, 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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[9] I now consider these matters in the context of the application currently before the Commission.
In doing so, I have adopted 21 June 2022 as the effective date of the dismissal. Although some confusion may well have occurred because of the incorrect date nominated in the email, the dismissal communication when read as a whole clearly intended the dismissal to operate with 4 weeks notice from the date of the email (24 May), being 21 June 2022. I observe that this is the approach contended by Coles, is the most favourable to Ms Leonard’s extension of time request and is consistent with the Applicant’s understanding at the time. This means that the application was lodged 5 days after the 21-day time period.
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation for the delay. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour; however, all of the circumstances must be considered on their own merits.[10]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[11] For reasons previously stated, the delay in this matter is 5 days and this is the focus of the present consideration. The events leading to that point remain relevant as part of the context for that delay.
The following detailed explanation for the delay and the extension of time request more generally was provided by Ms Leonard:
“I was acting in a manner that I believed was consistent with the spirit of the framework by which employees can bring disputes to the Commission. This process has been difficult for me and has taken its toll emotionally on me. I apologise for not lodging the relevant documents in time and had I known about the timeframes I would have lodged them earlier. Prior to me being terminated and when the vaccine policy first came in, I was on leave but still made enquiries about what my options are if I get terminated, I contacted my union and the Fair Work Ombudsman, unfortunately the 21 day deadline was not mentioned to me. I also contacted several legal firms and in late February the Fair Work Ombudsman enquiring about my rights, at no stage was 21 day deadline mentioned to me. I was told to make contact once I was terminated. Before getting terminated, I also contacted Coles asking them for general advice on what my rights at work if I am not vaccinated and did not get anywhere with them.
I also contacted my local MP but still did not get the advice I needed. Again at no stage did anyone advice me of the 21 day deadline.
I write this not to make excuses, I am simply trying to show you what steps I took to get advice and that at every stage I tried to get as much information as possible as I am not an Industrial Relations expert but took steps to find out what my rights are.
Before my termination, I was also still contacting my store and store manager to get advice. Sometime in late May while checking my Po Box, I received a termination letter from Coles, the actual letter was dated a few days earlier so straight away I was behind the 8‐ball when it came to lodging my dispute.
Getting the letter has caused me a lot of distress and personal anguish.
I am not someone who has had any legal training before and cannot afford a well trained lawyer. I can only move my case forward on my own.
I contacted the Fair Work Ombudsman again who then told me to contact the Fair Work Commission.
This was the first time I was told to contact the Commission, I was eventually sent some information by the Ombudsman about the process to lodge a dispute, by the time I received this I was already three days out.
I lodged my application as soon as I became aware of the 21 day deadline.
I have caring responsibilities and also assist in a business, getting the information and doing my own diligence was time consuming and had I been aware of the deadline I would have lodged my documents much earlier.
I ask for leniency and for the commission to use their discretion in my case.
The delay was largely caused by my inexperience with the process and at all times I was trying to get the information I needed to move my case forward.
Due to the size of my former employers business it would not prejudice their case as the delay was relatively short and I believe it would be useful for my case to proceed as it’s without merit.
… …”[12]
The Respondent contends that Ms Leonard has not provided a reasonable or acceptable explanation for the delay. Amongst other matters, it contends that “ignorance” of the time limit was not a sufficient basis to extend the time for lodgement and that Ms Leonard was capable of filing the application within time and has not provided an acceptable reason for not doing so.
I have already made various findings about the sequence of events leading up to the lodgement of this application, based upon the evidence that is before the Commission.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances that evidence must be cogent and inform the context and explanation as to why the application was delayed. Anger, distress and anxiety may not of themselves be sufficient.[13]
In this case, I find that Ms Leonard’s personal circumstances were genuine and provide some of the context for the steps taken to consider making the application; however, the primary reason for the timing was that the Applicant was not aware of the initial time limit and did not take any steps for many weeks after her dismissal to make further enquires or to contest the matter. The lack of such awareness, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[14] I am also not satisfied that the personal circumstances, when considered as a whole and in context, are such that Ms Leonard was unable to make reasonable enquiries and lodge the application on time. In substance, Ms Leonard decided against contesting her dismissal and subsequently took a different view some 7 weeks later.
The actual delay in lodgement beyond the time limit is 5 days. The application was already late when Ms Leonard changed her mind about contesting the dismissal and approached the FWO. Although Ms Leonard acted relatively promptly after obtaining the advice from the FWO, the earlier lack of priority and diligence do not assist her case. The overall explanation for the delay is not a satisfactory explanation.
Given those findings I consider that Ms Leonard has not provided a credible or satisfactory explanation for most of the period of the delay in making the unfair dismissal application.
The delay in this matter is relatively short but my conclusion about the explanation for the delay tells against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that Ms Leonard was aware (at the latest) of her dismissal soon after 24 May when she received the letter in her PO Box on 27 May 2022. The letter was also emailed to her on the day it was signed. A period of 4 weeks’ notice was also provided. This means that the Applicant had the full 21-day period to make the application. Indeed, Ms Leonard had the majority of the 4 week period of notice and the full 21 days to make any further enquires and to lodge the application. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Leonard did take some action to seek some advice. However, no definitive action to dispute her termination was taken up until the time that she contacted the FWO, some 7 weeks after being informed of that decision.
The factor is not conducive to a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent has not relied upon prejudice. This is relevant[15] and I have taken this into account in my assessment of exceptional circumstances noting that the absence of prejudice to the employer is not of itself a sufficient basis to warrant an extension of time.[16]
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[17] Further, the primary consideration is whether the Applicant has an arguable case.[18]
In the application, Ms Leonard contends, in effect, as follows:
·The dismissal was “discriminative” as she should have the right whether to be vaccinated or not.
·As the work involved was between 8.00pm and 11.00pm and she would wear a mask and be away from other employees, the vaccination requirement was unreasonable.
·There was no vaccination requirement for the majority of the pandemic and as the vaccination would not provide guaranteed protection for her, the policy was unreasonable.
The Respondent contends as follows in its response submissions on the extension of time matter:
“It is submitted that the Commission ‘should not embark on a detailed consideration of the substantive case for the purpose of an extension of time application.
The Commission has accepted that an employee’s refusal to obey their employer’s lawful and reasonable direction to be vaccinated against COVID-19 or provide a valid medical exemption will constitute a valid reason for dismissal. In any event, the Commission will need to consider evidence from both parties before it can make a determination on the merits of the Application.
It is submitted that the merits of the Application are at best a neutral consideration in this matter.”[19]
Some of the broad concerns raised in the application have been considered by various Courts and by the Commission. In general terms, the Commission has found that vaccination policies that are introduced by an employer with proper consultation and with appropriate safeguards and exceptions, may provide the basis for a lawful and reasonable direction. However, each case must be determined on its own merits having regard to the risks and other circumstances within the business and the community at the relevant time, and the detail of the policy and its application to the employee concerned. The competing contentions about the policy and its implementation here would need to be the subject of more detailed evidence than is presently before the Commission to enable any decision or conclusions to be made on these aspects.
I have weighed all aspects of this consideration into the overall assessment of exceptional circumstances required in this matter.
Fairness as between the person and other persons in a similar position
The Respondent contends that the key issue in this respect is whether an “applicant seeking an extension of time is considered in relation to other applicants employed by the same employer and affected by the same issue who filed applications in time.”[20] The Respondent further contends that it would not be fair for the Applicant to be granted an extension of time in which other employees of Coles have been required to comply with the statutory time limit and have done so.
I am not sure that the approach taken in the decision cited should be applied precisely as contended by Coles. The approach cited in the Court authority referenced in that decision was directed, in part, to the consistent treatment of employees (to enable them to make the application), when some had filed a considerable period after the other employees had made application.[21]
In any event, as a Full Bench of the Commission has observed, “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.”[22]
As accepted by Coles during the hearing, there is an absence of evidence in this matter that would enable the comparison of similar positions to be made.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
I have found that the considerations in s.394(3) of the Act do not favour a finding of exceptional circumstances, or in some cases are, in effect, of neutral significance in this matter. All factors must be taken into account and given appropriate weight.
Having considered all the circumstances of this matter and the considerations provided by s.394(3), I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a) of the Act, and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[23]to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
L Leonard, the Applicant on her own behalf.
J Goyal, on behalf of Coles Pty Ltd, the Respondent.
Hearing details:
2022
August 17
Video Hearing.
[1] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[2] Section 394(3) of the Act.
[3] Written submissions of 1 August 2022.
[4] Exhibit R1.
[5] Attachment MT1 to Exhibit R1.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[9] Minister for Aboriginal Affairs v Peko-WallsendLtd (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[11] Ibid.
[12] Applicant’s submission 1 August 2022 – exhibit A1.
[13] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[14] Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 5472.
[15] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[16] Brodie-Hanns v MTV Publishing Pty Ltd (1995) 67 IR 298 at [300].
[17] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[18] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[19] Respondent Submissions 8 August 2022.
[20] By reference to Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773 at [38].
[21] By reference to the decision of Sheppard J in Wedesweiller and Others v Robert William Cols and Others (1983) 47 ALR 528.
[22] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].
[23] PR744932.
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