Mark Ewings v RTL Mining and Earthworks Pty Ltd

[2021] FWC 6665

[2021] FWC 6665

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Ewings
v
RTL Mining and Earthworks Pty Ltd
(U2021/10434)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 DECEMBER 2021

Extension of time (s 394(3)) – no exceptional circumstances – application dismissed

[1] This decision concerns an application by Mr Mark Ewings for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Ewings’ employment with RTL Mining and Earthworks Pty Ltd (company) was terminated on 26 October 2021. Section 394(2) 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 period of 21 days ended at midnight on 16 November 2021. Mr Ewings’ application was lodged on 17 November 2021, one day out of time. In order for the application to proceed, Mr Ewings requires the Commission to grant a further period of time within which to bring his application.

[2] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in 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.

[3] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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. I will consider each of these matters as they pertain to Mr Ewings’ application.

[4] The Act does not indicate the reasons for delay that might tell in favour of granting an extension of time (s 394(3)(a)), however decisions of the Commission have referred to an acceptable or reasonable explanation. As to the reason for the delay in filing his application, Mr Ewings said that he is not ‘tech savvy’ and required the assistance of his neighbour in using computers and the internet. He said that his neighbour is a busy person because she runs a company and a farm and has a family, and that she was not available to assist him. Mr Ewings said that he lives in a small town with limited services and that there had been a number of power outages in the area. Mr Ewings also submitted that he was stressed and anxious around the time of his dismissal.

[5] In my assessment, the matters raised by Mr Ewings are not acceptable or reasonable explanations for the delay, nor are they exceptional matters, either individually or when taken together. An unfair dismissal application can be lodged in a number of different ways, including over the telephone (see rule 9 of the Fair Work Commission Rules). Mr Ewings could also have simply telephoned the registry of the Commission and asked for information or assistance. He could have asked someone else to help him. Not being ‘tech savvy’ is not an exceptional circumstance, nor does it warrant special treatment in the Commission’s consideration of whether to extend time. As to the reference to power outages, Mr Ewing did not say when exactly these occurred or how long they lasted, or why they affected his ability to lodge his application on time. Nor has Mr Ewing established that stress and anxiety prevented or seriously impeded him from lodging his application on time. The reasons given for the delay tell against an extension of time.

[6] Mr Ewings said that he was notified of his dismissal one day before it took effect (s 394(3)(b)). He therefore had the benefit of the full 21-day period to lodge his unfair dismissal application. Mr Ewings said that he consulted his union representative about his dismissal in front of his employer, and that the representative said that Mr Ewings should be allowed to continue working because he was a mineworker rather than a construction worker. To the extent that this can be regarded as action taken by Mr Ewings to dispute his dismissal, I accord it minimal weight and consider it to be a neutral factor (s 394(3)(c)). There is no evidence of prejudice to the employer (s 394(3)(d)). This is a neutral factor. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Ewings and other persons in a similar position (s 394(3)(f)).

[7] The Commission is required to take into account the merits of the application (s 394(3)(e)). The company dismissed Mr Ewings because he had not been vaccinated against COVID-19 or made a booking to be vaccinated by the required deadlines. Mr Ewings contends that his dismissal was unfair because he worked in the mining industry, not the construction industry, and that therefore the mandatory vaccination rules for the construction industry did not apply to him. Mr Ewings said that he did not consider that the requirement to be vaccinated was reasonable because he worked alone and had limited contact with other persons on site. He also said that his dismissal was unfair because he had not been paid for sick leave which he had taken prior to his dismissal, nor did he receive any severance payment.

[8] The company contended that Mr Ewings’ dismissal was not unfair and that he had been dismissed for a valid reason because he was unable to fulfil the inherent requirements of his job. The company submitted that Mr Ewings’ role was covered by the Victorian government’s COVID-19 Mandatory Vaccination (Specified Facilities) Directions (Specified Facilities Directions) and the COIVD-19 Mandatory Vaccination (Workers) Directions (Workers Directions) which require employees covered by the directions to be vaccinated unless they have a medical exemption. The company submitted that under the Specified Facilities Directions, persons performing work at a construction site were required to have received at least one dose of vaccine by 2 October 2021, and under the Workers Directions, employers were required not to permit their employees to work away from home unless they were vaccinated or booked to receive their first dose by 22 October 2021. The company submitted that on 4 October 2021, it had written to Mr Ewings and advised him that, because he was not vaccinated, he would not be permitted on site unless he had a medical exemption, and that if he decided not to get vaccinated or provide a valid exemption, his employment might be terminated. The company had also offered to arrange appointments with medical practitioners to discuss any concerns that employees might have in relation to the vaccine. The company submitted that the Victorian Premier and Health Minister had both indicated that the public health orders mandating vaccinations for relevant workers were likely to remain in place during 2022, and that Mr Ewings’ role could not be performed remotely, nor could the company hold his position open for an extended period.

[9] An application to extend time is in the nature of an interlocutory application (see s 396). It is not possible to form any concluded view about the merits of the application. Based on the material before me, I consider that Mr Ewings’ case is weak. It appears to me that the relevant public health directions applied to Mr Ewings’ employment and that the company was required to comply with them. Mr Ewings chose not to get vaccinated and was therefore not able to perform his job. Nevertheless, I am prepared to consider the merits to be a neutral consideration in deciding whether to extend time. I would note that the arguments concerning the merits do not in my view disclose exceptional circumstances.

Conclusion

[10] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various considerations are considered individually or together. Mr Ewings did not establish an acceptable or reasonable explanation for the delay. None of the considerations in s 394(3) weighs in favour of an extension. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time, and I decline to do so. Mr Ewings’ unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

M. Ewings for himself
N. Prestia for RTL Mining and Earthworks Pty Ltd

Hearing details:

2021
Melbourne
22 December

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