Louisa Norman v Glenelg Shire Council

[2022] FWC 957

[2022] FWC 957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Louisa Norman

v

Glenelg Shire Council

(U2022/2490)

COMMISSIONER YILMAZ MELBOURNE, 27 APRIL 2022

Application for an unfair dismissal remedy – out of time – leave to be represented – date of dismissal – extension of time denied.

1. This decision concerns an application by Ms Louisa Norman (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).

1. The Applicant was dismissed on 20 December 2021 from her position of administration support officer (Building/Planning/Health) that she held from 27 July 2018. This application was filed on 25 February 2022, 46 days late of the 21-day statutory time frame.

1. Following the COVID-19 Mandatory Vaccination (Specified Workers) Order (No.1) and previous directions (Pandemic Orders) issued under the Public Health and Wellbeing Act 2008 (Vic), Ms Norman was required to be vaccinated against the COVID-19 virus or provide a medical contraindication by no later than 22 October 2021. Ms Norman advised Glenelg Shire Council (Council) in writing that she was reluctant to be vaccinated and was in the process of applying for an exemption.[1] The correspondence states that she expects that the exemption would “take several weeks and is not guaranteed.” Council temporarily granted her request to work from home full-time until her exemption was granted.

1. Ms Norman had difficulty in obtaining an exemption and presented medical certificates covering periods of her absence until 28 December 2021. Council submits that it paid Ms Norman sick leave payments, despite it not being obliged to, until her suspension from employment on 16 December 2021.

1. Ms Norman’s employment was terminated on 20 December 2021[2] because of her inability to perform the inherent requirements of her role after she confirmed that she could not show evidence of vaccination nor could she produce an exemption from the Pandemic Order requirements. However, despite Ms Norman’s dismissal, Council provided her with an opportunity to be reinstated should she either comply with the vaccination requirements or obtain a medical exemption consistent with the requirements of the Pandemic Orders.

1. Ms Norman submits that she advised her employer on 21 December 2021 that she found a doctor that could provide her with a temporary exemption until she could see her medical specialist in May 2022. She submits that the offer of reinstatement was rescinded on 3 February 2022 after her medical practitioner provided additional information as requested by Council. Ms Norman states that she had no reason to file an unfair dismissal application prior to 3 February 2022 as all actions indicated to her that she would be reinstated.

1. I held a directions hearing on 7 March 2022 without Ms Norman’s legal representative. Neither Ms Norman nor chambers could contact Mr Gareth Rogers of Reignite Democracy Australia. I am satisfied that both Ms Norman and Mr Rogers were advised of the directions hearing. In attendance was Ms Norman, Council’s representative and the Respondent’s legal representative, Ms Natasha Sim of Russell Kennedy Lawyers. Numerous attempts were made to contact Mr Rogers without success. Despite the delay to proceedings, I issued directions for the filing of materials including requiring Mr Rogers to file submissions concerning leave to appear.

1. A non-compliance hearing was scheduled for 25 March 2022 after the Applicant failed to comply with the directions. Further, Mr Rogers was of the view that he did not need to seek leave to appear as he submits that he is neither appearing as the Applicant’s lawyer or as a paid agent.

1. Mr Rogers confirmed that he is a registered corporate lawyer for Reignite Democracy Australia and due to his limited registration, he would not act as the Applicant’s paid legal representative in proceedings. I determined that s.596 of the Act makes no exception for lawyers from seeking leave to appear on the basis of not receiving payment or on the conditions of their registration as a lawyer. The exceptions to leave to appear are limited to s.596(3) and (4), neither of which apply to Mr Rogers. Amended directions were issued, and the hearing date was adjourned to a later date. Both parties were granted leave to be legally represented.

1. During the non-compliance proceedings it was evident that Mr Rogers was also representing other applicants before the Commission. I note that the application in this matter listed Mr Rogers as the applicant’s representative and provided his email address and telephone number. The Commission will rely on the contact details provided in the forms filed to advise of listings and directions. It is incumbent on representatives to manage their files, advise of any change to contact details and comply with the Commission’s directions. Failure to do so is not only an inconvenience to the Commission but may be inferred that an advocate lacks regard for the Tribunal, but in any case, inefficient management of the file certainly does not represent the client’s best interests. I found Mr Rogers to be respectful at all times and do not suggest any disrespect, but the delays were avoidable with better administration of the file. While in this instance I was able to reschedule proceedings, it will not necessarily always be the case that delays can be accommodated.

1. 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).

1. The date the dismissal “took effect” is when notice of the dismissal is communicated to the employee and if notice is given, then the dismissal takes effect at the end of the notice period. The letter of termination of employment from Council to Ms Norman was dated 20 December 2021 and terminated her employment after first communicating to her the vaccination requirements on 15 October 2021. It is not in dispute that the date of dismissal took effect on 20 December 2021.

1. Ms Norman contends that regardless of the dismissal on 20 December 2021, her employment clearly came to an end after her employer rescinded her reinstatement on 3 February 2022, as she was strongly of the view that her medical exemption to support reinstatement was acceptable. She further contends that her actions in the period from dismissal until the date of the letter rescinding her reinstatement was reasonable and therefore the extension of time should take into account the period from 3 February 2022.

1. Section 394(2) of the Act requires that applications be made within 21 days of the dismissal. The date of rescinding the reinstatement on 3 February 2022 is not the date of dismissal of Ms Norman’s employment. Ms Norman contends that s.394(3) allows the Commission the discretion to extend the period for the application to be made and the circumstances warrants an extension of time.

1. Council contends that Ms Norman’s employment was dismissed on 20 December 2021 and that reinstatement was not a certainty. Council provided evidence of communication between the parties which shows that after a further extension to provide additional medical information the offer to reinstate was rescinded on 31 January 2022, and the correspondence of 3 February confirmed rescission of the reinstatement offer. Council submits that Ms Norman has failed to demonstrate exceptional circumstances and that the application should be dismissed.

1. 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, 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.[3] Exceptional circumstances may 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 can be considered exceptional.[4]

1. The requirement that there be exceptional circumstances before time can be extended under s.394(3) 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, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

1. Section 394(3) requires that, in considering whether 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.

1. 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 Application.

Reason for the delay

1. Ms Norman contends that she “had no reason to lodge a claim with FWC prior to 3 February 2022 as I was certain I would be returning to my employment from the time I obtained the medical exemption. After 3 February I began to investigate legal options and then lodged my claim 21 days from this date.”[5]

1. Council submit that the dismissal letter made clear that Ms Norman was dismissed because she could not perform the inherent requirements of her role because of the Victorian Pandemic Orders which had imposed requirements for vaccination against the COVID-19 virus. Council’s offer to reinstate Ms Norman was conditional on her obtaining evidence of vaccination or an exemption from the requirements by 7 January 2022. It was known that Ms Norman had difficulty in obtaining an exemption and she indicated in writing that she had no intention of obtaining the vaccination.[6] However, on 7 January 2022, Ms Norman provided a digital medical certificate from a medical practitioner based in Queensland on the basis that Ms Norman’s generalised anxiety disorder was a medical contraindication. Council determined that generalised anxiety disorder is not a medical contraindication exempted from vaccine requirements in Victoria.

1. Council submits that Ms Norman’s certainty to be reinstated “in breach of the Order due to her COVID-19 digital certificate” and her failure to account for the whole of the delay does not give rise to exceptional circumstances.[7]

1. Extension of time applications set a high bar; therefore, the entire period of delay must be explained with credible reasons.[8] Evidence to support the credible the reasons will be expected. Further the reasons for the delay are to be exceptional.

1. 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. 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 the applicant’s favour, however all of the circumstances must be considered.[9]

1. Ms Norman submits that she obtained legal advice in October and November of 2021 and then further advice from Reignite Democracy Australia after 3 February 2022 but prior to filing her unfair dismissal application. Ms Norman gave evidence that she was aware of the 21-day statutory time limit to file unfair dismissal applications. Mr Rogers described Ms Norman’s inaction to file within 21 days as reasonable, and had she filed, it would be construed as a form of adverse action given the parties were in good faith negotiating a reasonable prospect of a return to work.

1. I am satisfied that Ms Norman was aware of her dismissal on 20 December 2021 and of the requirement to file an unfair dismissal within 21 days of the dismissal. I do accept that Ms Norman was hopeful that she would be reinstated, despite the correspondence to her from Council that clearly stated that there was no guarantee of reinstatement, including her own correspondence.[10] This correspondence shows that even Ms Norman, despite her hopes, was aware that reinstatement was not guaranteed and together with her knowledge of the time limit, her reason for the delay is not exceptional to weigh in support of an extension of time.

1. Further, Ms Norman was well aware of what was required of her and the reason for her dismissal. Ms Norman was on notice since October 2021, and the evidence shows that she had difficulty in obtaining a medical exemption while employed. I am satisfied that she was under no illusion that should she fail to obtain a valid exemption, there was no prospect of either retaining employment or subsequently obtaining reinstatement. Being hopeful of reinstatement, relying on the employer’s goodwill to keep the job open beyond the deadline until 20 December 2021, and an offer of reinstatement should she provide an exemption until 7 January 2022, (which Ms Norman did not meet) do not weigh in her favour in relation to her reason for the delay in filing the application.

1. The 21-day time limit gave Ms Norman until 10 January 2022 to file her application. On 7 January 2022, Ms Norman provided access to a digital medical certificate prepared by an interstate medical practitioner which she considered to have met the requirements to be exempted from meeting the vaccine requirements. The digital certificate provides no details of Ms Norman’s exemption status and states that it is valid from 23 December 2021 until 23 June 2022. On receipt of the digital certificate, Council wrote to Ms Norman and provided her with separate correspondence for the general practitioner requesting further information to satisfy itself of outstanding concerns before it could agree to her reinstatement.[11] This letter, dated 12 January 2022 makes apparent that Ms Norman’s employment is subject to the Victorian Government’s health directions and lists as a guide the limited medical exemptions. The letter to Ms Norman makes clear that reinstatement is not guaranteed. Had Ms Norman filed her application at this stage, a 2-day exemption would have been considered, instead Ms Norman filed her application on 25 February 2022, 46 days late. Unfortunately for Ms Norman, the further information provided by the medical practitioner was not received by the agreed date of 28 January 2022 and the offer to reinstate with continuity of employment was rescinded.[12] I do observe that despite the offer of reinstatement being rescinded, Council further offered Ms Norman the opportunity to apply for any vacancy should her circumstances change.

1. Ms Norman did not file an unfair dismissal application on receipt of the correspondence dated 31 January 2022. On 2 February 2022, Ms Norman forwarded to Council the correspondence from Dr Nixon and in her covering email states, “Im hoping that you might agree that it would be in Councils best interests to re-instate my employment outside the discussed deadline.”[13] This correspondence from Ms Norman confirms that she did not expect to be reinstated, rather she was hoping that she would. It was open to Ms Norman to file an unfair dismissal application at any time after her dismissal. There was no evidence that had she filed an application to preserve her rights that it would adversely affect Council’s offer of reinstatement. Taking into account all of these circumstances, the reason for delay is not exceptional and does not weigh in her favour.

1. The Act is clear that the 21 days commences from the date of effect of dismissal and this application is 46 days late. The bar to grant an extension is high and Ms Norman’s explanation for the entire period of the delay while not exceptional, must be considered together with the balance of provisions in s.394(3)(b)-(f) of the Act.

Whether the person first became aware of the dismissal after it had taken effect

1. Ms Norman was aware of her dismissal on 20 December 2021. There is no contested evidence concerning the events leading up to and including the dismissal, and the letter of termination confirms the dismissal.

1. Ms Norman contends that this consideration is not relevant as there is no contest to the date of dismissal. The Respondent during cross examination obtained from Ms Norman the concession that she could have filed her unfair dismissal at any time during the events post dismissal and still would have filed on time. The circumstances leading to Ms Norman’s dismissal are not contested and it is evident that Ms Norman was aware of the time limit prior to her dismissal. The circumstances leading to the dismissal, and the actual dismissal on 20 December 2021, do not weigh in her favour in relation to this consideration.

Action taken to dispute the dismissal

1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[14]

1. Ms Norman did not contest her dismissal until the application was filed on 25 February 2022. Instead, after her dismissal, she continued to pursue options to present a medical contraindication to satisfy the Victorian Government’s Pandemic Order and Council’s offer of reinstatement with continuity of employment if she could show evidence of satisfying the requirements by 7 January 2022.

1. Ms Norman did not dispute her dismissal; however, she did attempt to find a solution to Council’s offer of reinstatement. For these reasons, I do not consider this consideration to be in her favour.

Prejudice to the employer

1. Both parties do not contend that the delay causes prejudice to the Respondent. While I find no prejudice to the Respondent, the authorities provide that the mere absence of prejudice is insufficient to grant an extension of time.[15] This consideration does not weigh up with the other considerations in favour of the assessment that there are exceptional circumstances.

Merits of the application

1. Ms Norman submits that her dismissal is unfair because the reason that she was unable to perform the inherent requirements of the role is not a lawful direction within the provisions of her contract of employment and position description. Additionally, she submits that Council agreed to reinstate her if a medical exemption was obtained. She contends that a valid medical exemption was uploaded onto Medicare and subsequently the reinstatement was rescinded. The retraction of the offer to reinstate she submits is discriminatory and it is not within the scope of the employer to question the validity of the exemption. Ms Norman further contends that the request for medical information is a breach of her privacy and is unlawful.[16]

1. Council submit that the Applicant’s case lacks merit. The COVID-19 Mandatory Vaccination Pandemic Orders under the Public Health and Wellbeing Act 2008 required vaccination, unless exempted. At the time of Ms Norman’s dismissal, the COVID-19 Mandatory Vaccination (Specified Workers) Order (No.1) applied. This Order expired on 12 January 2022, and has subsequently been replaced by further Orders, the most recent as at 12 April 2022 being (No.6). Council submits that it is obliged to comply with the Pandemic Orders otherwise it risks penalties. Council’s evidence was that Ms Norman neither provided evidence of vaccination or a medical contraindication in accordance with the Pandemic Orders, therefore she was unable to perform the inherent requirements of her role.

1. The Commission is not required to consider the detail of the substantive case but may consider whether the Applicant has a sufficient case based on the merits.[17] The Pandemic Orders impose an obligation on employers in Victoria in relation to vaccination to limit the spread of COVID-19 within its workforce. This means that if workers are required to perform work outside of their place of residence, the employer must collect, record and hold information about a worker’s vaccination status. Unless the worker meets the vaccination obligations, no work can be conducted in the workplace where that workplace is outside of the worker’s normal place of residence. Ms Norman’s work was captured by the Pandemic Orders and Council was required to comply. The direction to comply with the Pandemic Order was a lawful and reasonable direction by Council. Ms Norman was unable to comply by the initial deadline of 22 October 2021. Council accommodated Ms Norman while she took steps to obtain a medical contraindication in compliance with the Pandemic Orders by firstly providing the opportunity to work from home temporarily and then by extending her date of compliance. Even after she was not capable of meeting the further dates imposed by Council, it offered to her the opportunity to be reinstated with continuity of employment provided she could meet the obligations by 7 January 2022. Upon further extensions, Ms Norman failed to meet the obligations imposed by the Pandemic Orders to satisfy a reinstatement. The Pandemic Orders have limited exemptions that constitute medical contraindications and the medical evidence provided by Dr Nixon did not meet those requirements. In any event, the dismissal occurred on 20 December 2021, and on its face the reason and process, it appears a weak case for the Applicant. I observe that Ms Norman did not strongly contest the dismissal during proceedings on the basis of merit, so I rely on her application form to identify the nature of her arguments as to why she contends that her dismissal is unfair. Based on that information, I cannot find that the merit has a strong chance of success.

1. Having regard to the matters referred to above, I do find that Ms Norman’s application is not a strong case on merit to find this consideration to weigh in her favour.

Fairness as between the person and other persons in a similar position

1. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. The Applicant did not address this consideration, and the Respondent submits that this consideration is irrelevant. I am satisfied that this consideration is a neutral assessment as to whether there are exceptional circumstances.

Conclusion

1. Having regard to the matters I am required to take into account under s.394(3)(a) to (f) and all of the matters raised by the Applicant, I am satisfied that there are not exceptional circumstances to grant an extension of time from among one or the collective of the required considerations.

1. Accordingly, the application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

G. Rodgers for the Applicant.
N. Sim for the Respondent.

Hearing details:

2022
Melbourne (By Video using Microsoft Teams)
14 April.

[1] Exhibit R1, attachment SR-02 letter from Applicant dated 12 October 2021.

[2] Exhibit R1, attachment SR-10 letter of termination of employment dated 20 December 2021.

[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[4] Ibid.

[5] Exhibit A1, statement of Ms Louisa Norman.

[6] Exhibit R 1, attachment SR-02.

[7] Respondent’s outline of submissions at [18] – [20].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

[10] Exhibit R1, attachment SR-02, SR-14 email of 18 January 2022 and SR-16 email of 2 February 2022.

[11] Exhibit R1, attachment SR-13, letter of 12 January 2022 to Ms Norman and letter to Dr Nixon of 12 January 2022.

[12] Exhibit R1, attachment SR-15 letter of 31 January 2022 from Council to Ms Norman.

[13] Exhibit R1, attachment SR-16.

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[15] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.

[16] Applicant’s Form F2 application at Q3.2.

[17] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Guidice J, Acton SDP, Gay C, 10 November 2000)[14].

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