Marola Amin v Mainfreight Distribution Pty Ltd

[2021] FWC 6677

[2021] FWC 5288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marola Amin
v
Mainfreight Distribution Pty Ltd
(U2021/11043)

COMMISSIONER WILSON MELBOURNE, 23 DECEMBER 2021

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

[1] This decision concerns an application by Ms Marola Amin (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Amin’s employment with Mainfreight Distribution Pty Ltd (Mainfreight) was terminated with effect from 4 November 2021. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on 1 December 2021.

[2] 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). The period of 21 days ended at midnight on Thursday, 25 November 2021. The application was therefore filed 6 days outside the 21-day period. Ms Amin asks the Commission to grant a further period for the application to be made under s.394(3). Mainfreight opposes this request.

[3] For the reasons set out below I am not satisfied on the material before me there are exceptional circumstances in Ms Amin’s case. Accordingly, I decline to allow an extension of time for the making of her unfair dismissal application.

[4] A hearing relating to the application was held by me on 21 December 2021, at which Ms Amin appeared on her own behalf and Ms Libby Pallot, solicitor, of Russell Kennedy appeared for Mainfreight. Permission for the Respondent to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)). Evidence was given in these proceedings by Ms Amin in her own behalf, and on behalf of Mainfreight by Mr Sander Vreeburg, the Respondent’s Branch Manager.

MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION

[5] 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’. Exceptional circumstances have been defined as 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. 1 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.2

[6] 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.

[7] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:

“394 Application for unfair dismissal remedy

(1) ….

(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.”

[8] 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.

BACKGROUND

[9] Ms Amin had worked as an Account Champion (Sales), or Customer Champion, for Mainfreight at its Epping premises and had done so since May 2018. 3 She lost her employment after Mainfreight determined that because of her failure to show proof of having received vaccination against COVID-19 she was not permitted to lawfully attend Mainfreight premises to perform her duties and thereby could not lawfully perform her role. Ms Amin does not resist that characterisation, however, argues that Mainfreight did not take into consideration that her religion’s restrictions meant she was not able to take the vaccine, or that she could have performed her role from her home, something which others in her team had been doing. Ms Amin does not explain in detail why her application for unfair dismissal to the Fair Work Commission was late, other than pointing to her applying for other jobs, despite the mental and financial stress she was dealing with, and that the job applications consumed her attention, time and energy.

[10] Mainfreight submitted that Ms Amin’s duties as a Customer Champion required her to be in its premises. Her duties included liaising with other team members, inspecting freight on the depot floor, relabelling and other tasks associated with physical freight in the depot as well as running reports. Mainfreight argues that Ms Amin regularly attended the workplace as an Authorised Worker during the lockdown periods in Victoria in 2020 and 2021.

[11] In October 2021 the Victorian Government made certain declarations about the need for nominated workers to provide evidence of their vaccination status. Mainfreight’s submissions include that the directions apply to any person who is “freight worker” and that all of Mainfreight’s Victorian workers fall under the definition and, as such, must have provided evidence to their employer that they have had their first COVID-19 vaccination by 22 October, and the second by 26 November 2021, or provide an approved exemption in order to continue to attend the workplace.

[12] On 11 October 2021 Mainfreight wrote to Ms Amin, which it argues was part of its consultation process. The letter identified to Ms Amin what Mainfreight took to be its obligations and, noting that it understood she had declined to have the first vaccination, encouraged her to consider the benefits of becoming vaccinated. The letter also identified that if she were not to be vaccinated Mainfreight would be unable to provide her with work and she would be suspended without pay, which in turn may result in her dismissal. There then ensued a chain of correspondence between the two parties.

[13] As part of that correspondence Ms Amin provided Mainfreight with a “religious exemption statement”, advancing that her sincerely held religious belief prevented her from getting a COVID-19 vaccine. She is a Coptic Christian holding strong views about abortion with an understanding that the manufacturers of the COVID shots have used aborted foetal cell lines as part of their development or testing of vaccines. Mainfreight rejected Ms Amin’s religious exemption contentions, noting that such does not fall within any of the valid exemptions of the Directions and that it considered it had no option other than to comply with the Directions. Mainfreight also rejected the possibility of Ms Amin working from home.

[14] On or about 11 October 2021, Ms Amin’s Branch Manager, Sander Vreeburg, met in person with Ms Amin to discuss her position in relation to the Directions and whether she was going to comply with Mainfreight’s requirements. She replied that she was working on “something”. When Mr Vreeburg queried whether this was a medical exemption, she replied it was “something like that”. 4

[15] On 14 October 2021, Ms Amin informed Mr Vreeburg via an email that she had requested a medical exemption and it was being submitted for processing. 5 However, she failed to provide a valid medical exception or medical certificate during the consultation period.6

[16] On 15 October 2021, Ms Amin was stood down without pay until 29 October 2021 while Mainfreight “work through these issues”, and;

“The purpose of the suspension is to consider whether there is any scope to continue your employment from home with modifications to your role or in a different role, or whether we will need to dismiss you on the basis that you cannot lawfully perform the inherent requirements of your role. It also gives you an opportunity to reconsider your position, and/or to make a booking” 7

[17] On 28 October 2021 Mainfreight wrote to Ms Amin, putting her on notice of its view that she could not lawfully perform her duties without receiving a COVID-19 vaccination. The correspondence also notified Ms Amin that part purpose of her suspension was to consider alternatives and make a booking for a vaccination, which could take place at Mainfreight’s premises on a nominated date, where the Pfizer vaccine was being made available to employees. The correspondence also gave Ms Amin a deadline for the continuation of her employment;

“If you wish to continue your employment with Mainfreight, we require you to provide evidence to me of one of the following by 3.00pm, 4th November 2021:

•  your first dose vaccination

•  full vaccination or

•  your exemption”  8

[18] Mainfreight acknowledges that during the consultation period Ms Amin informed them that she was unable to be vaccinated due to her religious beliefs. Mr Vreeburg submitted that they considered how this might be accommodated, but had no available suitable roles which the Applicant could undertake from home. 9

[19] On 4 November 2021, Mainfreight terminated Ms Amin’s employment with effect from the same date, which was communicated in a further letter to her. Ms Amin’s unfair dismissal application was then lodged in the Commission by her on Wednesday, 1 December 2021.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

Reason for the delay

[20] 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. 10

[21] Ms Amin’s explanation for the delay in lodging the application is only that the emotional and financial stress of her termination weighed on her and that she made other job applications during the period which consumed her attention, time, and energy. In her oral evidence she related that she made a considerable number of job applications, aiming to make at least 10 a day, and that this was the focus of her attentions after dismissal. She conceded that her consideration of making an unfair dismissal application did not take place until after the 21 day time limit had passed.

[22] I do not consider this explanation individually or together, to be an acceptable or reasonable explanation for the delay. It may be presumed that many, if not all people who have been dismissed will be distressed and anxious about their financial future. So too may it be expected that all potential unfair dismissal applicants will spend time and energy making job applications; in fact, not to do so would invite criticism from the Commission for having failed to mitigate one’s loss of employment and the financial security which comes with it. These matters are not unusual and are not to be regarded as acceptable explanations for having made an unfair dismissal application out of time.

[23] I also take into account that from at least 11 October 2021 – a full three weeks before her dismissal was communicated on 4 November 2021 – Ms Amin was aware of the employer’s views about its obligations to require employees to provide evidence they have had a COVID vaccination and what she had to do to conform. While she was evidently shocked her employer carried through on its notified caution she was nonetheless on notice. Ms Amin apparently researched the development of the various vaccines and how they corresponded with her beliefs, as well as researched how anti-discrimination legislation may apply to her situation. However, there is no evidence that she either researched what was required for an “exception” under the Directions or the time-limits for this jurisdiction, if the worst occurred. Those matters do not assist consideration of whether Ms Amin has an acceptable explanation for her delay in lodging her application for unfair dismissal remedy.

[24] In case it were to be said the Applicant in this matter suffered greater distress and anxiety than may be normal because she had to resolve a highly personal dilemma of whether she should have a vaccination because she thought each available alternative had been developed using foetal cell lines, I do not accept any such dilemma either explains the delay in filing or was likely to be active at the time in question. The relevant time is the period after dismissal, and at that time she had made her choice and had been dismissed as a consequence. There is no evidence that she was actually and profoundly distressed because she had to make a choice which took her in the contrary direction to her beliefs. Because the choice she made was before termination of employment, not in the 21 days after termination, any anxiety that may have stemmed from a wavering decision was replaced by other matters after termination. In her evidence, Ms Amin stated that during the 21 days following her dismissal she aimed to apply for at least 10 jobs per day. This is not indicative of a state of distress which would effectively prevent an application from being made within time. I do not find undue distress connected with the reasons for dismissal provides an explanation as to why Ms Amin’s unfair dismissal application was made out of time.

[25] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

[26] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is therefore a neutral consideration.

Action taken to dispute the dismissal

[27] There is no material before the Commission demonstrating Ms Amin took any steps to dispute her dismissal, except for the filing of the application. This criterion therefore weighs against a finding of exceptional circumstances.

Prejudice to the employer

[28] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted, and none is asserted by Mainfreight. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[29] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[30] At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters. 11 Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.12

[31] The dispute between the parties is whether Mainfreight was actually required by law to seek evidence from its employees that they had been vaccinated and refuse them work if not, or alternatively whether it was reasonable for Mainfreight to decline to allow Ms Amin to work from home. The facts pertaining to these contentions are not greatly in contest, however the decisions made by Mainfreight as a consequence are. For Ms Amin to be successful in her case she would have to establish either that the Directions did not have effect in her circumstances or that her work could be done from home and that Mainfreight acted unreasonably in not allowing her to do so. On the basis of the material presently before the Commission it is unlikely that these things could be demonstrated. Ms Amin’s case is best described in these regards as weak, and not in the “highly meritorious” category referred to above.

[32] Nonetheless, in the absence of full argument of either party’s case, I regard this criterion as a neutral consideration in my decision.

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

[33] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 13 It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.14 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues and who has been granted an extension of time for the making of a late application.15

CONCLUSION

[34] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Amin, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. An order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms Amin for herself

Ms L Pallot for the Respondent

Hearing details:

Melbourne (via video conference);
21 December
2021.

Printed by authority of the Commonwealth Government Printer

<PR733211>

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

 2   Ibid.

 3   Form F2, Unfair Dismissal Application; Court Book, page 5.

 4   Statement of Evidence, Sander Vreeburg at [15.2]; Court Book, Page 56.

 5   Annexure C; Court Book, Page 84.

 6   Statement of Evidence, Sander Vreeburg at [17]; Court Book, Page 57.

 7   Form F3, Annexure 4 – Letter to Applicant 14-10-21; Court Book, Page 35.

 8   Annexure F; Court Book, Page 101.

 9   Statement of Evidence, Sander Vreeburg at [16]; Court Book, Page 57.

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

 11   Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].

 12   Haining v Deputy President Drake (1998) 87 FCR 248, [250].

 13   Wilson v Woolworths [2010] FWA 2480, [24]‒[29].

 14   Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].

 15   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].