Mark Baker v Ian Turner

[2021] FWC 6594

[2021] FWC 6594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Baker
v
Ian Turner
(U2021/9990)

COMMISSIONER BISSETT MELBOURNE, 15 DECEMBER 2021

Application for an unfair dismissal remedy

[1] Mr Mark Baker has made an application seeking remedy for unfair dismissal. Mr Baker was employed by Ian Turner Fencing (Respondent) and his employment terminated on 15 October 2021. His application for unfair dismissal was received by the Commission by post on 8 November 2021, three days after the end of the 21-day period within which an application must be made. For Mr Baker’s application to be filed in time it would have to have been received by the Commission by midnight on Friday 5 November 2021.

[2] Mr Baker worked on agricultural properties doing fencing work and the like.

[3] Mr Baker seeks an extension of time within which to make his application.

[4] On 12 November 2021 I issued directions in which I required that Mr Baker file submissions and evidence in relation to his request for an extension of time by 19 November 2021. The Respondent was advised that if it wished to file any submissions it could do so by 25 November 2021.

[5] On 17 November 2021 Mr Ian Turner of the Respondent filed a submission in which he indicated that he had no objection to the extension of time sought by Mr Baker. However, on filing his Form F3 – Employer response to unfair dismissal application the Respondent indicated that it did object to the grant of an extension of time. It also raised a jurisdictional objection to the application on the ground that it had not dismissed Mr Baker.

[6] Mr Baker filed submission on 15 November 2021 in which he provided information as to why his application was filed late. He attached to that submission correspondence sent to him by the Respondent on 15 October 2021, a copy of the Nuremberg Code (1949), an excerpt from a decision of the Commission (which he later said was filed in error) and a copy of an email he received from the Commission on 4 November 2021.

[7] The application for an extension of time was set down for hearing on 7 December 2021. At the commencement of the hearing I granted the Respondent permission to be represented by a lawyer. Following a discussion with the parties I determined that the matter would proceed by way of a determinative conference.

[8] Mr Baker gave evidence and made submissions in relation to his application for an extension of time and in response to question asked of him from the Bench. The Respondent made brief submissions opposing any grant of an extension of time.

Was Mr Baker dismissed?

[9] There is some dispute as to whether Mr Baker was dismissed that came to the fore only when the Respondent filed its Form F3. Mr Baker says he was dismissed on 15 October 2021 during a discussion with Mr Turner of the Respondent.

[10] The Respondent submits that it did not dismiss Mr Baker but rather sought to talk to him about alternative duties he might be able to perform as he was not vaccinated for COVID-19.

[11] Mr Turner did not give evidence and I have determined that, for the purpose of determining any extension of time within which to make his application, I accept that Mr Baker was dismissed and that this occurred on 15 October 2021.

Was Mr Baker’s application late?

[12] As outlined above Mr Baker sent his application for unfair dismissal to the Commission by ordinary mail. This is a legitimate and accepted way of filing an application with the Commission. 1

[13] A review of the Australia Post website indicates that its standard delivery time for ordinary mail within a state is “up to 4 business days”. In these circumstances Mr Baker, posting his application on 4 November 2021, could not have reasonably expected the correspondence to be delivered before 10 November 2021, a date outside the 21 day time frame within which his application was required to have been received. For this reason it cannot be argued that Mr Baker’s application would have been received within the 21 day time frame given the standard postal times.

[14] There is no merit in an argument (and none was put) that the delay in Mr Baker’s application being received by the Commission was caused by the postal service. Mr Baker’s application was therefore filed out of time.

EXTENSION OF TIME

[15] The Fair Work Act 2009 (FW Act) requires that an application for unfair dismissal be made within 21 days after the effective date of dismissal. Section 394(3) of the FW Act sets out those matters to which the Commission must have regard in deciding if there are exceptional circumstances such that an extension of time should be granted.

394 Application for unfair dismissal remedy

…

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[16] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 2

[17] 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

Reason for the delay

[18] Mr Baker said that he was dismissed on 15 October 2021 when Mr Turner of the Respondent told him he would have to “let him go”.

[19] Mr Baker said he was aware that he needed to file his application within 21 days of the date of dismissal.

[20] Mr Baker said that, following his dismissal, he was busy putting a claim into Centrelink and that this took him until 1 November 2021. He says he then did nothing for a couple of days but, being aware of the 21-day time limit for making an application, completed the application form on 4 November 2021. He says he sent it to the Commission electronically but the form he sent was blank. He said he tried a few times but each time, even though he had a completed form on his phone, the form he sent to the Commission was blank.

[21] Mr Baker said the Commission contacted him to tell him the form was blank, so he decided to print out the form and send it by post. Mr Baker attached a copy of this correspondence from the Commission to his application for an extension of time.

[22] I am satisfied that Mr Baker was aware that he had 21 days from the date of his dismissal to file his application for unfair dismissal.

[23] I am further satisfied that Mr Baker sent an email to the Commission in which he said “Im lodging a claim I have attached the relevant forms” (sic) on 4 November 2021 at 6.12am. The Commission contacted Mr Baker by return email and advised that he had not attached any documents to his email. Mr Baker responded not long after that and advised that “Yes I did see that after sending it,technology isn’t my strong point so I filled them out at home and have mailed them too you PO BOX” (sic).

[24] Mr Baker’s unfair dismissal application dated 4 November 2021 was posted (by post mark) on Thursday 4 November 2021 by ordinary mail and received in the Commission on Tuesday 8 November 2021.

[25] I am therefore satisfied that the delay in Mr Baker filing his application with the Commission was his failure to attach his completed application to an email to the Commission and his subsequent decision to send his application by post. In choosing this course of action Mr Baker was aware that he only had 21 days from the date of his dismissal to make his application.

[26] While I am satisfied that Mr Baker took steps to make his application within time, his failure to take steps before 4 December 2021 but rather concentrate on his Centrelink matters, meant that, when the technology did fail him (and he admits he is not good with technology so this result should not have been totally unexpected), he had a very limited period within which to ensure his application was received by mail.

[27] Whilst it is normally the case that it is the period of delay after the 21 day period that is considered in looking at the reason for the delay, the inactivity of Mr Baker in relation to this application and that he did not commence his application process until 4 November 2021 – well towards the end of the 21 day period – is a relevant consideration and is the reason for the delay. Mr Baker should have had some sense that posting a letter on Thursday in a Victorian country town ran a real risk that it would not be delivered by the end of the following day.

When he became aware of the dismissal

[28] Mr Baker said he became aware that he had been dismissed on 15 October 2021 when Mr Turner advised him that he would have to “let him go”. This occurred after Mr Baker told Mr Turner that he would not be having a COVID-19 vaccination.

[29] The Respondent said that Mr Baker was not told that his employment was terminated but rather Mr Turner sought to meet with him to discuss options given he was not going to be vaccinated.

[30] To the extent it might be accepted that Mr Baker had his employment terminated on 15 October 2021, I am satisfied that he became aware of the termination that day.

Any action taken to dispute the dismissal

[31] Mr Baker said that he disputed his dismissal with Mr Turner and told Mr Turner that the requirement that he, Mr Baker, receive vaccination was contrary to his human right not to be vaccinated.

Prejudice to the employer

[32] There is no submission as to any prejudice to the employer if the extension of time is granted.

Merits of the claim

[33] Mr Baker claims that his dismissal was unfair because his human rights and constitutional rights were being trampled on, the conduct of the Government was deceptive and he should not be forced to take an “experimental poison”. Mr Baker also said that his dismissal was unfair because he should not be required to participate in a “medical trial”.

[34] Mr Baker said that he worked alone and not near other people and that, in such circumstances, there was no need for him to be vaccinated.

[35] The Respondent argued, in relation to the merits of the application that Mr Turner made a number of requests of Mr Baker in relation to the requirement to have a COVID-19 vaccine but that the Mr Baker refused to follow the Mandatory Vaccination (Workers) Direction (Direction) and have a vaccination. The Respondent received a contracting job with the Catchment Management Authority (CMA) to commence on 18 October 2021. The CMA is a government authority with strict requirements as to vaccination. For this reason Mr Baker could not attend the CMA contract.

[36] Mr Turner said he tried to talk to Mr Baker about alternative work but the Respondent did not have any such work for Mr Baker to perform.

[37] The Respondent said that it is involved in fencing on farms. The vaccine mandate covers those involved in agricultural and related work. The work performed by the Respondent falls into this category meaning the Respondent’s employees are covered by the Direction.

[38] If it is that Mr Baker was dismissed form his employment the Respondent says it is because he refused to comply with the Direction. This, it says, provides a valid reason for his dismissal if that dismissal did, in fact, occur.

[39] While it is that the Commission will not place undue weight on the merits of an application where it involves contested matters of fact I would observe that this application is one where the question of a valid reason apparently relates to a Direction given by the Chief Health Officer in relation to mandatory vaccines for certain classes of workers or workers in particular industries. Mr Baker does not dispute that the Direction was given nor that it applied to him (although he does argue he could have been put to work where he has no contact with others). Prime facie this suggests a valid reason for dismissal. Mr Baker’s claim that the vaccines are ‘experimental’ and that the requirement to be vaccinated infringes his human and constitutional rights appear, on their face, to be slogans as opposed to arguments as to the merits of his claim based on any fact.

[40] For these reasons, on Mr Baker’s material alone, his application appears to have limited merit.

CONSIDERATION

[41] It is incumbent upon Mr Baker to demonstrate that there are exceptional circumstances and that, in these circumstances, I should exercise my discretion and grant him an extension of time within which to make his application.

[42] I do not consider Mr Baker’s explanation of the reason for the delay to be satisfactory. He determined to not make his application until 4 November 2021, knowing that there was a 21-day period within which it needed to be made and knowing that he was not particularly good with technology. His problem with technology came to the fore when he attempted to file his application electronically. He was then left with limited time to make his application but chose to send it by ordinary mail. There were other options available to Mr Baker (including making a telephone application) but he chose to send it by post. It is not so unusual that the application was then not received until after the expiration of the 21 days.

[43] Further, there is, on its face, little merit to Mr Baker’s claim for unfair dismissal.

[44] There is nothing exceptional in the circumstances outlined above. Mr Baker was aware of his technological limitations and was aware of the time within which he had to file. Neither this alone, or in combination with his arguments as to merit – at their highest – or any other matter outlined provide the basis on which I could conclude that exceptional circumstances exist or, if they did, that an extension of time should be granted.

[45] The request for an extension of time within which to make the application for unfair dismissal is therefore not granted. The application, being out of time, is therefore dismissed. An order 5 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

The applicant appeared on his own behalf.

S. Engwerda of Cosgriff Lawyers for the respondent.

Hearing details:

7 December 2021. Melbourne, by telephone.

Final written submissions:

3 December 2021.

Printed by authority of the Commonwealth Government Printer

<PR736705>

 1   See Fair Work Commission Rules 2013 Rule 13(2)(b)

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

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

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]

 5   PR736706