Matthew Leigh Hayto v BAE Systems Australia Limited T/A BAE Systems Australia
[2022] FWC 1753
•12 JULY 2022
| [2022] FWC 1753 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Matthew Leigh Hayto
v
BAE Systems Australia Limited T/A BAE Systems Australia
(U2022/4885)
| COMMISSIONER WILLIAMS | PERTH, 12 JULY 2022 |
Application for an unfair dismissal remedy
Mr Matthew Hayto (Mr Hayto or the applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is BAE Systems Australia Limited (the respondent).
Mr Hayto was verbally notified of his dismissal on 30 March 2022 and the dismissal took effect the same day. Mr Hayto’s application was made on 29 April 2022.
The application has been made more than 21 days after the dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(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.”
Consequently, on 12 May 2022 the Commission’s staff wrote to the applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Commission’s correspondence explained that if he relies on a medical condition as the reason for the delay, he should supply a medical certificate or report which specifically explains why this medical condition prevented his from making the application within time.
The applicant provided a written response on 17 May 2022.
The respondent objects to the applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The applicant’s reason for the delay
In his application as filed the applicant explains he was unaware he only had 21 days to lodge his application until recently as he had been putting it off due to the frustration and mental stress of the situation.
In his response to the Commission’s correspondence, he explains that the stress and mental health aspect of the situation has been daunting.
He said the financial burden along with the daily pressure of looking for work in this environment with mandates in place everywhere has been a day-to-day struggle.
He refers to the fact that he was made to use up all his paid leave from Dec 31st until it ran out on Jan 18th and was then left in limbo for the following 10-12 weeks before termination.
The applicant explains that with two young children to feed and a mortgage and bills to pay, finding work has been his number one priority over everything else.
The applicant explains he was waiting for a wage payment to clear into his bank account so that he could pay for the fee for the application.
Considering the reasons for the delay in this matter, firstly, it has been held on many occasions by this Commission that an applicant not being aware of the statutory timeframe of 21 days is neither an acceptable explanation for delay nor is it an exceptional circumstance.
With respect to the applicant experiencing stress and mental health difficulties, notwithstanding the advice from the Commission in its correspondence to the applicant he has not supplied a medical certificate or report which specifically explains why any medical condition he was suffering from prevented his from making the application within time.
The financial consequences of being unemployed and prioritising obtaining other paid employment are unfortunately common consequences of being dismissed.
The applicant’s reference to what occurred prior to his dismissal does not explain why his application was not made within 21 days after his dismissal.
Finally, it is not uncommon that employees who have been dismissed are not financially able to pay the cost of the application. I note on the applicant’s Form F2 Unfair Dismissal Application he had the opportunity under the heading of “Financial Hardship” immediately above the Payment Options to lodge a Fee waiver form for the application fee to potentially be waived. However, he did not take up this option.
None of the reasons for the delay that the applicant has explained are acceptable reasons for the delay in making this application, neither do they individually nor together amount to exceptional circumstances.
Did the applicant first become aware of the dismissal after it had taken effect?
The applicant became aware of his dismissal on the day after it took effect.
Action taken to dispute dismissal
The applicant did not take any other action to dispute his dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
The termination of employment letter dated 30 March 2022 provided to the applicant refers to the Port Worker and Exposed Port Worker (Restrictions on Access) Directions (No. 2) Directions that were made under the Public Health Act 2016 (Western Australia) which the respondent says applied to the applicant’s role.
The respondent’s letter refers to the requirements on the applicant imposed by the government directions to have either received the Covid-19 vaccine, and to provide evidence of that in order to lawfully access the workplace, or, to instead demonstrate he had a valid exemption from vaccination.
The letter says that despite requesting evidence from the applicant to confirm that he meets these requirements he had not done so, and he had indicated that he had no intention of becoming vaccinated and was not otherwise exempt under the directions.
The letter refers to a show cause process and a decision by the respondent to terminate the applicant’s employment because he was unable to lawfully perform the requirements of his role then or in the reasonably foreseeable future.
The respondent in its Form F3 Employer response to unfair dismissal application has expanded on the reason for dismissal in detail and on the various procedural steps taken prior to the final decision to dismiss the applicant..
The application filed by the applicant submits his dismissal was unfair for a range of reasons as follows.
§His employment contract does not state anything about mandatory vaccination
§Mandates are not laws
§Public Health Orders are not lawful
§Vaccination status is covered by Commonwealth Privacy Act 1988
§There is no proof the vaccine is safe and effective
§There have been thousands of adverse events and no one is liable
§Many other State and Federal laws cover vaccinations
These arguments the applicant has put forward, as to why his dismissal was unfair, have been unsuccessfully argued before this Commission in numerous other unfair dismissal remedy applications concerning employees who have not satisfied the requirements of the government’s directions that proof of vaccination or exemption be provided before employees can lawfully enter particular workplaces.
Consequently I view the merits of the case here as weak. The applicant is most unlikely to succeed at hearing.
Fairness as between the person and other persons in a similar position
There is no information before the Commission regarding fairness between the applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors, I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the applicant to make this application.
This application has been made out of time and so must now be dismissed.
An Order [PR743498] to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
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