Mitchell Thackeray v Karingal St Laurence Limited
[2022] FWC 624
| [2022] FWC 624 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mitchell Thackeray
v
Karingal St Laurence Limited
(U2022/830)
| COMMISSIONER LEE | MELBOURNE, 25 MARCH 2022 |
Application for an unfair dismissal remedy – circumstances not exceptional – application dismissed.
On 17 January 2022, Mr Mitchell Thackeray (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Karingal St Laurence Limited (Respondent). The Applicant was employed in the position of Disability Educator.
The reason given by the Respondent for the decision to terminate the Applicant’s employment was serious misconduct by failing to follow a lawful directive, specifically:
“• Failure to obtain the covid-19 vaccine as per Victorian Government mandate (COVID-19 Mandatory Vaccination (Workers) Directions) “known as the mandate”
· Through this act, it is alleged that you have breached the Victorian Government mandate (COVID-19 Mandatory Vaccination (Workers) Directions).”[1]
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. There is a dispute as to when the dismissal of Mr Thackeray took effect.
The Applicant claims that he did not receive notice of his termination until 24 December 2021 (or possibly earlier, but certainly no later)[2] when he received the letter of termination by post at his home address. The Applicant agreed, however, that on 21 December 2021 he received the following text message:[3]
“Hi Mitchell, I called to let you know that an outcome has been determined as outlined in the letter after your non attendance at the rescheduled meeting. The outcome letter will be sent through to you via email and post. Clint@genU”[4]
The Applicant also agreed that on 21 December 2021 a voice mail was left on his mobile phone by Mr Gillmartin, his acting Supervisor.[5]
The Applicant’s evidence as to whether he received the email referred to by Mr Gillmartin was inconsistent. In his witness statement he said:
“The reason for the delay was that the letter of dismissal was addressed to the wrong house and and I was shut out of the organisation’s internal email and could not access the electronic version of the letter. The letter arrived in my mailbox on or about the 24th of December 2021.”[6]
(per original)
However, during the hearing, the Applicant said that he could open his email, but not the attachment.[7] It was the attachment that contained the information about his dismissal.
Furthermore, there was no mention in the Applicant’s Form F2 of a failure to understand that he was dismissed on 21 December 2021. He affirmed during the hearing that he was notified of the dismissal on 21 December 2021, and that it took effect on 21 December 2021.[8]
The Applicant also agreed that on 21 December 2021 he knew an outcome had been decided, and he strongly suspected that that was the dismissal of his employment.[9]
Despite this, the Applicant took no action to contact the Respondent to secure a copy of the attachment by any other means.[10] During the hearing the Applicant stated the reason he took no action to secure a copy of the attachment was because of his mental health.[11] I note that other than the Applicant’s reference to his mental health issues which arose for the first time during cross examination, there was no particular evidence given as to the state of the Applicant’s mental health, no medical evidence provided on the matter, and no mention of his mental health condition on his Form F2 or witness statement.
Prior to the email being sent on 21 December 2021 informing the Applicant that he had been dismissed, the Respondent had engaged in extensive efforts to make contact with the Applicant.
There was a discussion between the Applicant and the Respondent on 30 November 2021. The following exchange occurred during the hearing:
“Then you attended a meeting, didn’t you, Mr Thackeray, on 30 November 2021, and you told genU, at that meeting, that you weren’t able to give them an exemption from your treating practitioner, that your treating specialist would not give you a medical exemption, is that right? ‑Yes.
You said, at that meeting, you did not intend to be vaccinated against COVID-19? ‑Yes.
At that meeting it was made clear to you that if you didn’t get vaccinated, or provide evidence of your vaccination, or a valid exemption, you would not be able to do your job as a disability worker, is that correct? ‑Yes.”[12]
After that time, the Applicant was invited to a meeting on 3 December 2021 via Zoom.[13] The Applicant did not respond to the invitation, nor did he attend the meeting. His supervisor, Mr Morrissey, called him and left a voicemail message.[14] The Applicant did not return this call.[15]
On 8 December 2021, Mr Gillmartin, who was acting in the role of Mr Morrissey, called the Applicant’s mobile phone to no avail. The Applicant then texted the number asking who it was.[16] Mr Gillmartin texted the Applicant back stating:
“Hi Mitch, this is Clint from genU, I’m acting in Darren’s position while he is on leave. Can I give you a call to organise a meeting time with myself and P&C?”
The Applicant did not respond, claiming that his mental health “wasn’t so great”.[17]
Mr Gillmartin made another phone call to the Applicant on 9 December 2021, which the Applicant did not answer or take any action in response to.[18] On 10 December 2021, the Applicant received another phone call and voicemail message, but he did not respond.[19]
Then on 14 December 2021, the Applicant was sent a letter requesting him to attend a formal meeting on 17 December 2021. The Applicant confirmed that he received that letter.[20] The letter also states as follows:
“If you are unable to attend the meeting on Friday 17 December 2021 (and do not suggest an alternative time which is more suitable to you) a finding/outcome will be made based on the information currently before genU and you will be informed of the finding/outcome.
…
Please be aware that the outcome of this meeting may result in disciplinary action (up to and including termination).”
On 15 December 2021, Mr Gillmartin sent the Applicant a text message pointing out that he had been invited to a Zoom meeting and that the details of the Zoom meeting are in the email.[21] Again, the Applicant did not respond at all. The Applicant states that he did not attend the meeting “because of my mental health and I wasn’t comfortable speaking to strangers.”[22] During cross examination, the Applicant conceded as follows:
“Well, you did know because you’ve had contact from Clint, introducing himself, saying he’s acting in that role, but you’ve chosen not to engage with Clint, Mr Gillmartin, is that right, because you didn’t feel comfortable, you say? ‑Yes.”[23]
Having considered the evidence, I am satisfied that the dismissal of the Applicant took effect on 21 December 2021, when the notice of his termination was sent to his usual email address.
The Applicant opened that email, but his evidence was that he could not open the attachment. However, the Applicant did absolutely nothing to try and secure access to the attachment. He could have called the employer or replied to the email asking that the document be sent again. This would have been a reasonable thing for him to do given his evidence that on 21 December he knew, based on the constant communication from the Respondent, that an outcome had been decided and he suspected that that was the dismissal of his employment.[24] Yet the Applicant chose to do nothing.
Against the background on the constant efforts of the Respondent to engaged with the Applicant in the process that led up to the dismissal and the Applicant’s awareness that the dismissal was likely, I am satisfied that the Applicant had at least a reasonable opportunity to find out that he was dismissed when he received the email and opened it on 21 December 2021. I am satisfied that the Applicant’s employment was terminated with effect from 21 December 2021.
Based on a termination date taking effect on 21 December 2021, the application for a remedy should have been lodged by no later than 11 January 2022.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 6 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, I will outline the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay;
· whether the Applicant first became aware of the dismissal after the date it took effect;
· any action taken by the Applicant to dispute the dismissal;
· prejudice to the Respondent including prejudice caused by the delay;
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[25]
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 or unprecedented, nor do they need to be very rare.[26] I must be satisfied that, taking into account s.394(3) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
a) Reason for the delay
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.[27]
The key reason that the Applicant gave for the delay was that:
“i did not know that i had to contact you, i had contacted unfair dismissals australia and i hadnt heard back from them so i contacted them and they said that i contacted the wrong organisation and that i needed to contact you.”[28]
(per original)
As to the reason for the delay, there is no evidence that the Applicant did anything other than contact Unfair Dismissals Australia, wait for a time, and then ultimately lodge an unfair dismissal application 6 days later than the statutory minimum of 21 days. There was no suggestion that the Applicant had instructed Unfair Dismissals Australia to do anything nor any indication that he lodged an application for unfair dismissal remedy mistakenly with them.
During the hearing, the Applicant for the first time referenced in general terms his mental health as a reason for not engaging with the dismissal process. There was no medical evidence to support his claims of mental illness, and no particularity as to how it had impeded his ability to lodge an unfair dismissal application. While the Applicant did not assert through his evidence that he relied on mental health as a reason for the delay, his support person submitted that:
“the extension of time is really on the basis that of his mental health issues and his serious privacy concerns about talking about those issues with people that he did not know.
…
given that he suffers from autism, it’s not an easy process for him to work out how to go about such things.”[29]
I have considered the evidence pertaining to the mental health of the Applicant and I am not satisfied on the evidence that the Applicant’s mental health was impacted to the extent that it is an acceptable reason for the delay. As to the reference to the Applicant being autistic and that this was a contributing factor, the only reference made to the Applicant being autistic was by the Applicant’s support person. The Applicant gave no evidence on that point whatsoever and did not suggest that it was a contributing factor to the delay.
In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.
b) Whether Applicant first became aware of the dismissal after the date it took effect
As set out earlier, I have determined the dismissal took effect on 21 December 2021. The Applicant’s evidence was that he was aware of the dismissal on that date. In the circumstances, that is a matter that is neutral.
c) Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal. The Applicant’s evidence was “the only action taken to dispute the dismissal was filing an unfair dismissal claim”.[30] In the circumstances, that is a matter that is neutral.
d) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Applicant does not believe there is any prejudice to the employer, and the Respondent did not make any submissions on this point. In the circumstances, that is a matter that is neutral.
e) Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
It is apparent that the Applicant has been dismissed because at the relevant time he was covered by the COVID-19 Mandatory Vaccination (Workers) Directions and failed to provide evidence of vaccination or a valid exemption.
The Applicant was dismissed for allegedly engaging in serious misconduct by failing to follow a lawful and reasonable direction to receive a COVID-19 vaccine when he was a worker covered by the Victorian Government mandate. The Applicant accepts that he was a worker covered by that mandate.[31]
I do not think it likely that the Applicant’s conduct in refusing the vaccine would be found to be serious misconduct. Nevertheless, it is likely there is a valid reason for his termination, that being his inability to perform the inherent requirements of his role. Either way, the failure of the Applicant to obtain vaccination against COVID-19 when he was a worker covered by the Victorian Government mandate and employed in a role that required him to work face to face with disabled people, is in all of the circumstances likely to be found to be a valid reason for dismissal. I note that while the Respondent dismissed the Applicant for serious misconduct, he was nevertheless paid notice in lieu.[32]
There appears to have been notification of the reason for dismissal and an opportunity to respond to the reason. As set out at length earlier, the Applicant largely agreed with the evidence of the Respondent that he was asked to attend a number of meetings, and he simply refused to attend. Consideration of these factors are likely to weigh against the Applicant.
There may of course be other factors that come to light that favour the Applicant. However, on the limited material available and on a preliminary assessment basis, the Applicant’s case is weak. In the circumstances, that is a matter that weighs against the Applicant.
f) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position,
Cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, I am not satisfied that there is an acceptable reason for the delay. This weighs against the Applicant. In my preliminary assessment, the Applicant has a weak case and this weighs against the Applicant. All other factors are neutral considerations.
In the event that I am wrong about the date that the dismissal took effect, and it was in fact on 24 December 2021 the day the Applicant had most certainly received notice of termination by post, the Applicant was in those circumstances 3 days late in lodging his application. In those circumstances, the consideration remains the same as set out above in terms of the factors. There are two factors weighing against the Applicant, and all the other factors are neutral. Therefore, I also find in the event the dismissal took effect on 24 December 2021, I am not satisfied that there are exceptional circumstances.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued.
COMMISSIONER
Appearances:
M Thackeray, Applicant.
E Purdue for the Respondent.
Hearing details:
2022.
Melbourne (Microsoft Teams):
March 18.
[1] Letter dated 21 December 2021.
[2] Transcript at PN237.
[3] PN198.
[4] Witness Statement of Lily Stefanovic, at [26].
[5] PN195.
[6] Witness Statement of Mitchell Thackeray, at [2].
[7] PN201 – PN203.
[8] PN61 – PN63.
[9] PN231.
[10] PN235 – PN236.
[11] PN218 – PN219.
[12] PN84 – PN86.
[13] PN108.
[14] PN109.
[15] PN111.
[16] PN135.
[17] PN135 – PN139.
[18] PN142.
[19] PN143.
[20] PN144.
[21] PN152.
[22] PN152 – PN153; PN179.
[23] PN184.
[24] PN231.
[25] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[26] Ibid.
[27] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[28] Form F2 at Q1.5.
[29] PN310 – PN311.
[30] Witness Statement of Mitchell Thackeray, at [4].
[31] PN244.
[32] Form F3 at Q3.2.
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