Maxine Lorraine Dowson v Ramelius Resources Ltd
[2022] FWC 547
| [2022] FWC 547 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Maxine Lorraine Dowson
v
Ramelius Resources Ltd
(U2022/57)
| COMMISSIONER WILLIAMS | PERTH, 11 MARCH 2022 |
Application for an unfair dismissal remedy - extension of time.
Ms Maxine Lorraine Dowson (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Ramelius Resources Ltd (the Respondent).
The application states Ms Dowson was notified of her dismissal on 1 December 2021 and her dismissal took effect the same day. Her application was made on 29 December 2021.
The application has been made more than 21 days after the alleged 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 13 January 2022 the Fair Work Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided a written response on 20 January 2022.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position. The Respondent also submits that the Applicant was not dismissed.
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 the application as filed the Applicant stated the delay in making her application was due to the Christmas holiday period and needing to locate some legal advice. The Applicant repeated this explanation in her response to the Fair Work Commission’s invitation for her to provide relevant evidence and submissions regarding any exceptional circumstances in this case.
Self-evidently the Christmas holiday period, occurring every year as it does, is not an exceptional circumstance. In addition, the 21 days within which the Applicant was required to file her application ended before Christmas.
The need for a dismissed employee to obtain legal advice is unsurprising and commonplace and is not an exceptional circumstance.
The Applicant has not provided an acceptable explanation for the delay in making this application.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of her dismissal on the day it took effect.
Action taken to dispute dismissal
The Applicant did not take any other action to dispute her dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the Respondent.
The merits of the application
The Respondent is a goldminer and producer.
The Termination of Employment letter dated 1 December 2021 attached to the application refers to the Western Australia Government issued Resources Industry Worker (Restrictions on Access) Directions (the Directions) which apparently applied to both the Applicant and the Respondent.
In summary, those Directions provide for a prohibition on workers subject to the Directions attending the workplace who are not vaccinated, and the Respondent is obliged to collect a record of their employees COVID-19 vaccination and not allow them in the workplace if they are not vaccinated.
The Directions required a resource worker to have received a first dose of a COVID-19 vaccination by 1 December 2021 to be able to attend the workplace.
The Termination of Employment Letter states that without a COVID-19 vaccination the Applicant is no longer legally able to perform her role. The letter says the Respondent has considered the Applicant’s responses and reviewed opportunities across its group but regrettably there are no vacancies nor available opportunities within the business that do not require her to be based onsite or visit the site. The letter goes on to say that therefore her employment is terminated effective immediately.
The Respondent had also notified the Applicant of the Directions requirements by letter dated 17 November 2021.
In her application the Applicant submits that her dismissal was unfair because she had requested information of the Respondent which was not replied to. She said she was unlawfully requested to participate in an irreversible invasive medical procedure which carries substantial health risk and the Respondent, and its employees, have committed criminal and civil offences by breaching sections of the Australian Constitution, the Privacy Act 1988 and various unnamed discrimination Acts.
These submissions the Applicant makes regarding the Directions being unlawful, the Respondent’s actions being unlawful and in breach of the Australian Constitution, the Privacy Act 1988 and/or unspecified other legislation are submissions that are commonly made by employees who have chosen not to have a COVID-19 vaccination and who have as a consequence unfortunately been dismissed from their employment.
These submissions have already been considered on numerous occasions by this Commission and by other Australian courts, in a variety of different circumstances, and have been rejected.
In this case the Directions, which are a matter of public record, required a resource worker as defined to have their first COVID-19 vaccination by 1 December 2021. The Applicant had been made aware of this in advance. She apparently was not vaccinated by this date and so could not attend the workplace thereafter. As a result, she received the Termination of Employment letter.
The submissions the Applicant has made as to why her dismissal was unfair in these circumstances are ill-conceived.
Consequently, there is little merit in this application and it is unlikely to succeed.
Fairness as between the person and other persons in a similar position
There is no information 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 Fair Work Commission that a further period should be allowed for her 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 [PR739241] to that effect will now be issued.
Final written submissions:
Applicant, 20 January 2022.
Respondent, 11 January 2022.
Printed by authority of the Commonwealth Government Printer
<PR739240>
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