Marion McHale v Anglicare Victoria
[2022] FWC 413
| [2022] FWC 413 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marion McHale
v
Anglicare Victoria
(U2022/1313)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 MARCH 2022 |
Application for an unfair dismissal remedy
Ms Marion McHale was employed by Anglicare Victoria (Anglicare) as an Intake and Further Work Coordinator until her dismissal which took effect on 6 January 2022. At the time of her dismissal Ms McHale was unvaccinated and had not provided Anglicare with proof of vaccination. Although the specific operative Pandemic COVID-19 Mandatory Vaccination Order which applied to Anglicare in relation to Ms McHale is in dispute, it is not in dispute that at the time of the dismissal that pursuant to the operative order Anglicare was not permitted to allow Ms McHale to perform work for it outside her ordinary place of residence by reason of her vaccination status.
Ms McHale’s dismissal followed a show cause process commenced by Anglicare on 9 December 2021. The reason for Ms McHale’s dismissal was that Anglicare considered that it was no longer operationally viable, reasonable, or sustainable to continue to support temporary working from home arrangements, and as Ms McHale was not permitted to attend for work outside of her home, she did not have the necessary capacity to perform her position and was not likely to be able to perform her position in the foreseeable future. Consequently, Ms McHale’s employment was terminated.
Following the commencement of the show cause process, Ms McHale engaged solicitors. These solicitors continue to act for Ms McHale including in connection with the lodgement of Ms McHale’s unfair dismissal remedy application. That application was lodged on 31 January 2022. Section 394(2) of the Fair Work Act 2009 (Act) requires that an application for an unfair dismissal remedy be made within 21 days after the date on which the dismissal took effect, or within such further period as the Commission may allow. The time within which Ms McHale’s unfair dismissal remedy application could be made elapsed at the end of 27 January 2022. The application was therefore lodged four days beyond the time prescribed.
The Commission may allow a further period within which an unfair dismissal remedy application may be lodged but the power is only exercisable if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s 394(3). The expression “exceptional circumstances” is not defined in the Act, but it is well established that the expression describes circumstances that are out of the ordinary or unusual or special or uncommon. Circumstances need not be unique, or unprecedented, or even very rare. Exceptional circumstances might amount to a single event which is exceptional, or a combination of factors which, individually, are unexceptional but which, when combined or viewed together, persuade the Commission that the circumstances are exceptional.
In assessing whether there are exceptional circumstances the following matters must be considered:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken effect;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
Each matter needs to be considered, assessed, and assigned appropriate weight having regard to the evidence about each matter.
I deal with each of these matters below.
The Act does not specify what reason or reasons for delay might favour the granting of 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 the circumstances must be considered. The period of the delay with which the explanation is concerned is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect may be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation and may inform the weight that is attached to the reason for the delay.
In short, Ms McHale says that the reason for the delay is representative error. Anglicare accepts there was representative error but says that Ms McHale was not blameless and that she should have done more to ensure that her application was lodged at a time earlier than 31 January 2022.
In assessing an explanation of representative error as explaining the delay, the whole of the circumstances in which the representative error was made need to be examined. This includes an examination of the extent to which the applicant might be said to be “blameless” and whether by any act or omission an applicant contributed to or caused the error or the delay or any part of it. Thus, an applicant’s conduct is an important consideration in deciding whether representative error provides an acceptable explanation for the delay in filing an unfair dismissal application.[1] However, as Deputy President Saunders observed, correctly in my view, in Walton v DS Opco Pty Ltd:[2]
[12] It is not necessary for an applicant to demonstrate that they were “blameless” for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a legal practitioner or union in a timely fashion. However, as the Full Bench explained in Long v Keolis Downer, “an applicant cannot simply instruct his solicitor then sit on his hands for an extended period while the prescribed time for filing the application passes by”.[3] (Endnotes omitted)
Ms McHale’s solicitor, Ms Nadia EL-Hissi, gave evidence about the circumstances of the delayed lodgement and the reasons for the delay. That evidence was not contested. It is necessary to set out some of that evidence to understand the reason for delay in context.
Ms EL-Hissi is a solicitor in the employ of the legal firm NOH Legal. Ms McHale first instructed the firm to act for her on 9 December 2021 in respect of the earlier mentioned show cause process. Ms McHale had received a letter from Anglicare on 9 December 2021 requiring her to show cause why her employment should not be terminated because, in light of her vaccination status, she did not have the necessary capacity to perform her position in the foreseeable future. A response was sought by 17 December 2021. The firm replied on behalf of Ms McHale on the date due, receipt of which was acknowledged by Anglicare.
On or about 21 December 2021, Ms McHale received an email from Anglicare which informed her that Anglicare was reviewing her solicitor’s letter and would respond when the review was completed. Ms McHale was also advised that pending completing of the review her role would continue in the current arrangement. That is, the “temporary support” for the work from home arrangement in place vis-à-vis Ms McHale would continue for the period of the review. Later that day Ms McHale was advised by email that Anglicare would not be making any determination on the show cause letter until the week of 5 January 2022.
On 6 January 2022, Ms McHale received written notice of her dismissal with effect at the end of that working day. Although Ms McHale forwarded by email the letter of dismissal to her solicitors on the same day, because her solicitors’ office was closed for the Christmas New Year period from 23 December 2021 until 10 January 2022, that email was not read until 10 January 2022 and on that day Ms EL-Hissi wrote to Ms McHale confirming receipt of the letter of dismissal.
On about 13 January 2022, Ms McHale telephoned her solicitors to discuss her options in relation to the dismissal, including whether to make an application pursuant to s 394 of the Act. On or about 18 January 2022 Ms EL-Hissi advised Ms McHale that if she wished to make an unfair dismissal remedy application, she had 21 days from the date on which a dismissal took effect and that she needed to do so by no later than 27 January 2022. On 24 January 2022, following a series of discussions with her solicitors, Ms McHale gave her solicitors instructions to issue an unfair dismissal remedy application.
At this point, that is by 24 January 2022, Ms McHale’s solicitors had all the documents and instructions necessary to prepare, complete and file an application.
On 28 January 2022 Ms EL-Hissi telephoned Ms McHale and explained to her that because of various workload and resourcing issues (which I accept, and which need not be recited here) Ms EL-Hissi had been unable to complete Ms McHale’s application and to file it on time. Ms EL-Hissi explained that it would be necessary to apply to the Commission for an extension of time and that the application would be completed and finalised shortly once it had been reviewed and settled by Ms EL-Hissi’s principal.
Ms EL-Hissi’s evidence was that Ms McHale had expressed her understanding. Ms McHale did not withdraw her instructions. The application was settled by Ms EL-Hissi’s principal on 31 January 2022 and lodged on the same day.
Ms EL-Hissi’s evidence was that she did not consider lodging or advising her client to lodge an application by telephone as is permitted by Rule 9 of the Fair Work Commission Rules 2013 because she was not aware that an application by telephone could be made. Ms EL-Hissi also said that the need to attend to various personal matters over the weekend of the 29th and 30th of January 2022 did not permit the settlement and lodgement of Ms Howard’s application earlier than 31 January 2022.
There were patently several representative errors made. First, the failure by the solicitors to lodge Ms McHale’s application within the time prescribed though possessed of all the necessary information and instructions from Ms McHale to enable the solicitors to do so. By the time instructions to lodge the application were received on 24 January 2022, more than two business days (taking into account Australia Day) were available to complete, settle and file the application. It must be said that the task of completing an unfair dismissal remedy application using the Commission’s form is not an overly complex or time-consuming endeavour. And it certainly should not be for a solicitor. Second, there was a failure to advise Ms McHale that an application could be lodged by telephone. This could have been done on 28 January 2022. Third, there was a failure to show the necessary diligence required by the circumstances to give the already late application the highest of priority to ensure that it could be lodged on 28 January 2022 or at some stage over the weekend. Fourth, the acceptance of instructions to lodge an application where time is of the essence in circumstances where it was known to solicitors that because of the resourcing and workload pressures facing the firm it might not be able to complete, settle and lodge the application within the time prescribed was also an error. At the very least Ms McHale should have been alerted to the possibility that her application might not be lodged in time and so giving her the option of finding other representation or undertaking the task herself. It must be said that Ms McHale was not at all well served by her solicitors.
That said, it is by no means a comfortable experience for a young and relatively inexperienced solicitor to attend before a court or tribunal as solicitor on the record and set out in evidence under oath errors made in the practice of one’s profession. Ms EL-Hissi did just that and although nothing less should be expected, Ms EL-Hissi is nevertheless to be commended for her candour and will doubtless learn from and develop as a practitioner for the experience.
It seems to me, by 24 January 2022 Ms McHale provided clear instructions to commence an unfair dismissal remedy application and provided her solicitors with all the necessary information required to enable the solicitors to lodge the application and to do so within the time prescribed. There is no suggestion that Ms McHale was aware of the workload and resourcing issues facing the firm, her instructions had been accepted and she had no reason to think they would not be carried out or that her unfair dismissal remedy application would not be lodged within the time prescribed.
When Ms McHale learned that the application had not been lodged and was now late, the reasons for the solicitors’ failure to comply with her instructions were explained to her. In theory Ms McHale could justifiably have discharged her solicitors, but she was assured that the application would be lodged as soon as Ms EL-Hissi’s principal had settled the application. By this stage Ms McHale had a working relationship with her solicitors, Ms EL-Hissi had intimate knowledge of the background and circumstances of the dismissal given Ms EL-Hissi’s involvement in the show cause process and discharging her solicitors would not have rectified the late lodgement. As at 28 January 2022 the time of lodging the application had passed. Ms McHale knew that she would need to apply for an extension of time. Left to her own devices there was no guarantee that her unfair dismissal remedy application would have been lodged any earlier than the date on which it was ultimately lodged, that is, 31 January 2022. Ms McHale did not know, because she was not advised, that a telephone application could be made. In the circumstances, Ms McHale faced the unenviable choice of remaining with her solicitors, who had already failed her, and trusting that they would make good on their commitment to lodge the application as soon as Ms EL-Hissi’s principal had settled it; or to discharge her solicitors and proceed either to attempt to lodge the application herself or to search for new representation. The choice she made is understandable and is not likely to be productive of any further delay beyond the delay that is plainly attributable to the errors made by her solicitors.
For these reasons I am satisfied that there was representative error, that the representative error was wholly responsible for the period of the delay, that Ms McHale did not by error or omission contribute either to her solicitors’ errors or to any period of the delay. In these circumstances I consider that the representative error provides satisfactory explanation for the whole of the period and so weighs in favour of Ms McHale.
There is no dispute that Ms McHale became aware of the dismissal on the day that it took effect. Normally, that an applicant did not become aware of the dismissal after it took effect means the applicant had the benefit of the full 21-day period within which to lodge the application, and so might be a factor that weighs against a conclusion that there are exceptional circumstances. However, that Ms McHale had the full period with which to lodge her application needs to be assessed in the context of her solicitors’ error in failing to lodge on time. In effect she was deprived of any benefit the full 21-day period might otherwise provide because her solicitors failed her. In these circumstances this consideration weighs neutrally.
Although I accept that Ms McHale consulted her solicitors and sought advice about her dismissal, there is no evidence that she has taken any steps to dispute her dismissal beyond instructing her solicitors to lodge an unfair dismissal remedy application. If an applicant disputes a dismissal with her or his employer or brings the dispute to the employer’s attention, the employer is on notice that there is a controversy about the dismissal, so that in such circumstances this fact might weigh in an applicant’s favour. Conversely the failure to dispute the dismissal and to bring that dispute to the employer’s attention might weigh the other way. But action taken to dispute the dismissal is not confined to action taken directly with the employer.
Here, as I have already observed, there is no evidence of action beyond her interactions with her solicitors. That Ms McHale disputed her dismissal was not brought to Anglicare’s attention however needs to be weighed against the factual context. Plainly Anglicare knew that Ms McHale was legally represented in connection with the show cause process. Given the content of the letter from Ms McHale’s solicitors of 17 December 2021, it should have been evident that Ms McHale would likely dispute any dismissal on the grounds on which Anglicare proposed to rely. In these circumstances I do not consider that this matter weighs against Ms McHale.
As to prejudice, Anglicare does not assert that it will suffer any prejudice generally, or because of any extension of time. This is quite proper. The delay period was relatively short, and it would be surprising if an organisation as large as Anglicare would suffer any prejudice because of a short delay. The absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion and in the instant case I consider that this matter weighs neutrally.
Anglicare contends that Ms McHale’s application is without merit. Although it is not the function of the Commission in extension of time proceedings to determine, fully, the merits of the case, and in the present case no evidentiary testing of the parties’ respective positions was undertaken, nevertheless some assessment must be made. I do not consider the Ms McHale’s case is completely lacking in merit. There is a dispute about whether Ms McHale could perform her role from home. Nothing in the operative health order prevented an unvaccinated worker from performing their role from home. If Ms McHale can establish that her role could fully, efficiently, and productively be performed by her from home, then her application may have substantial prospects. Moreover, there is at least an arguable case that the dismissal was unfair because it was premature considering the advice that she and other co-workers received from Anglicare the day before the dismissal that recommend “people continue to work from home if you can”. Ms McHale had hitherto been working from home pursuant to the temporary arrangement in place. These are of necessity very preliminary views expressed for the purpose only of assessing whether the application is not without merit, and I so conclude. That the application is not without merit weighs in Ms McHale’s favour.
Finally, there is the matter of fairness as between Ms McHale and persons in a similar position. The assessment of this matter involves a comparison between the position of Ms McHale, and one or more other persons who have been dismissed in a similar position. Neither party addressed the comparison by reference to any individual in a similar position or by reference to any decision of the Commission involving similar factual circumstances. Generalised expressions of unfairness without reference to the requisite comparison are unhelpful. I am not otherwise aware of any relevant comparison. In the circumstances this matter weighs neutrally.
In the circumstances described above the reason for the delay in my assessment weighs heavily in Ms McHale’s favour. Moreover, as I have indicated, the application is also not without merit. None of the other relevant matters weigh against her. Taken together, I am satisfied that the are exceptional circumstances in the instant case.
I also consider that my discretion should be exercised in Ms McHale’s favour because it is in the interests of justice to do so and there are no discretionary considerations identified which would tend the other way.
Accordingly, I will allow Ms McHale a further period within which to make her unfair dismissal remedy application. Directions for the preparation and hearing of the application will separately issue.
Order
I order that:
1. Ms McHale’s application to allow her a further period to make an application for an unfair dismissal remedy is granted;
2. Pursuant to s 393(3) of the Fair Work Act 2009 Ms McHale may make an application for an unfair dismissal remedy by 31 January 2022.
DEPUTY PRESIDENT
Appearances:
N EL-Hissi for the Applicant
G Twomey for the Respondent
Hearing details:
2022
Melbourne (via video link)
25 February
Written submissions:
Applicant, 15 February 2022
Respondent, 22 February 2022
[1] See Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-9
[2] [2020] FWC 3031
[3] Ibid at [12]
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