Mohammed Fehmi Kremenarov v Remondis Australia Pty Ltd
[2021] FWC 6671
•23 DECEMBER 2021
| [2021] FWC 6671 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mohammed Fehmi Kremenarov
v
Remondis Australia Pty Ltd
(U2021/10643)
DEPUTY PRESIDENT MASSON | MELBOURNE, 23 DECEMBER 2021 |
Application for an unfair dismissal remedy – jurisdictional objections – applicant was not dismissed – application out of time – application dismissed.
[1] On 22 November 2021, Mr Mohammed Kremenarov (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Remondis Australia Pty Ltd (the Respondent) on 22 October 2021 was unfair.
[2] The Respondent objects to the application on two bases. Firstly, that the Applicant has not been dismissed within the meaning of s.386 of the Act. Secondly, the Respondent contends that the Applicant’s unfair dismissal application, which was lodged on 22 November 2021, was filed outside the 21-day statutory time period.
[3] The matter was listed for a conference/hearing on 21 December 2021. After hearing from the parties, I determined to conduct a conference pursuant to s.398 of the Act. At the conference, the Applicant appeared on his own behalf and gave evidence while Mr R Murphy of Minter Ellison was granted permission to appear on behalf of the Respondent pursuant to s.596(2)(a) of the Act. Mr Michael Grant, who is the Respondent’s Branch Manager based at its Dandenong site, was called to give evidence for the Respondent.
Background and evidence
[4] The Respondent is part of the Remondis group, which is a global waste management, recycling, and water company. The Respondent operates three sites in Victoria, those being at Coolaroo, Dandenong, and Somerton. Its business in Victoria includes collection services, recycling, processing and treatment of various forms of waste 1. Throughout the Covid pandemic, the Respondent has been identified by state and federal governments as an essential service and has been largely able to continue operating, which has allowed staff to continue attending work2.
[5] The Applicant commenced employment with the Respondent at its Dandenong warehouse as a ‘General Hand’ on a casual basis on 1 February 2021 and was paid a casual hourly rate of $30.87 3. His duties included working in the ‘Paintback’ business, which is a not-for-profit business that manages recovery of paint from the community. According to Mr Grant, the Applicant’s role was effectively that of labouring within the warehouses which required sorting paint then decanting it4.
[6] The Applicant states that he was in a meeting with all three managers at site on 10 September 2021 and was discussing permanent full-time employment. He says he was told by the “big boss” that he would be made permanent soon, but they were unsure of the procedure. Mr Grant denies having given such an assurance. Mr Grant says he recalls being in the office with Dr Aditya Kusnoadi and Mr Michael Slenz when the Applicant came to speak with them. He says that in response to the Applicant’s request to be made permanent he replied, “we will look into it” 5 During cross-examination the Applicant conceded that Mr Grant had stated that they would “look into it” and that Mr Grant did not provide a guarantee that he would be made permanent.
[7] On or about 1 October 2021, the Respondent became aware of the Victorian Government announcement requiring certain specified workers to have their first Covid-19 vaccination by Friday 15 October 2021. The key effect of the Covid 19 Mandatory Vaccination (Workers) Directions (the Directions) was that ‘Workers’ as defined in the Directions were not permitted to work for their employer outside their ordinary place of residence unless and until vaccinated. The Directions set out the dates from which the 1st and 2nd dose vaccination requirements would apply. The employees of the Respondent, including the Applicant, were ‘Workers’ for the purpose of the Directions.
[8] On or about 6 October 2021, employees of the Respondent were advised by way of letter 6 (6 October 2021 Letter) that the Directions would apply to the Respondent’s employees because of the nature of their work and that they were unable to work from home7. Mr Grant states he believes he provided a copy of the letter to the Applicant on or about 6 October 2021. While he did not dispute that he had received 6 October 2021 Letter, the Applicant believed he received it later but could not be sure what date he received it. The letter relevantly stated to employees that;
(i) all employees would be required to provide proof of at least one vaccination by 15 October 2021;
(ii) all employees would be required to receive both doses of vaccination by 26 November 2021; and
(iii) any employee not vaccinated by 15 October 2021, may be subject to disciplinary action, up to and including termination of employment. 8
[9] While conceding that he had not received any formal notification of his dismissal, the Applicant believed that the 6 October 2021 Letter constituted notice of termination of his employment by reason of the reference in the letter to the consequences for employees if they were not vaccinated by 15 October 2021. The letter specifically stated the following;
“……………
It is REMONDIS’ expectation that all employees would have received both doses of vaccination by 26 November 2021. Any employee who is not vaccinated by the 15 October 2021 may be terminated.
…………” 9 (emphasis added)
[10] On or about 7 October 2021 a ‘Frequently Asked Questions’ (FAQ) document 10 was also provided to employees. The FAQ document relevantly provided the following responses to particular questions;
Are vaccinations mandatory for REMONDIS employees? | REMONDIS is not currently mandating vaccination. However, under current DHHS orders for you to continue to be eligible for an Authorised Work Permit you must have your first vaccination by 15 October 2021 and second vaccination by 26 November 2021. If you do not have a valid Authorised Work Permit you will may not be able to work effective 15 October 2021. |
I do not want to get a COVID-19 vaccination. What are the consequences? | If you choose not to receive your first vaccination by 15 October 2021 and your second vaccination by 26 November 2021 you will not be eligible for an Authorised Work Permit, (unless you have received a medical exemption), and therefore may no longer be eligible to work effective 15 October 2021. |
[11] On or about 7 October 2021, Mr Grant says he became aware of the Victorian Government having released a further Direction that required ‘Authorised Workers’ to have received their first vaccination dose by no later than 15 October 2021 or to have made a booking to receive their first vaccination dose by no later than 22 October 2021 to be permitted to lawfully work outside their ordinary place of residence 11.
[12] Mr Grant states that over a 3-4 day period in early to mid-October 2021 he had a series of conversations with the Applicant in which the Applicant expressed an unwillingness to get the vaccination 12. Between 14 & 18 October 2021 a series of text messages were then exchanged between the Applicant and Mr Grant13. Messages sent to Mr Grant by the Applicant on 14 & 22 October appeared to indicate that the Applicant had made a vaccination appointment although the Applicant subsequently sent a message at 3.47pm on 22 October 2021 requesting a termination letter and attaching a ‘Reignite Democracy Australia’ document. He also confirmed during that exchange with Mr Grant on 22 October 2021 that he would not be getting a vaccination14.
[13] In the text message exchange between Mr Grant and the Applicant on 22 October 2021 Mr Grant stated in a message at 6.12pm that the Applicant could not attend work on Monday (25 October 2021) and that Mr Grant would call him on Monday. Mr Grant did not subsequently call the Applicant on Monday 25 October 201 as foreshadowed. On 8 November 2021, the Applicant again messaged Mr Grant querying where his termination letter was 15. Mr Grant did not respond to the text message from the Applicant on 8 November 2021 and states that he has not communicated with the Applicant since 22 October 202116.
[14] The Applicant states that on Friday 22 October 2021 Mr Grant pulled him aside after his shift was over and advised the Applicant that because he was not vaccinated, he would not be allowed back to work from Monday 25 October 2021. The Applicant further states that he then asked Mr Grant about being made permanent to which he says Mr Grant replied that he had all the paperwork ready to go and that all the Applicant had to do was get the vaccination.
[15] Mr Grant rejected the Applicant’s version of his conversation with him on 22 October 2021. Mr Grant states that while he had been open to the possibility of the Applicant being made permanent, he had never told him he had the paperwork ready to go. Rather, he had said words to the following effect in response to the Applicant’s question about being made permanent;
“You are not vaccinated. Whether you are permanent or casual, it does not matter, you can’t attend work unless you are an Authorised Worker which means you need to be vaccinated.” 17
[16] In response to questioning during cross-examination Mr Grant confirmed that some permanent employees who had not been vaccinated had their employment formally terminated after the prescribed date, but no casual employees had been terminated. As regards the Applicant, he confirmed that were the Applicant to get vaccinated he would be eligible to be offered further shifts as a casual employee.
Statutory Provisions
[17] As set out above, the Respondent has raised two jurisdictional objections to the application proceeding, those being that that the Applicant;
(i) has not been dismissed; and
(ii) the application was filed outside statutory 21-day period.
[18] Turning to the first ground of objection, s.394(4) of the FW Act provides that a ‘person who has been dismissed’ may apply to the Commission for an order granting a remedy. Section 386 deals with the meaning of ‘dismissed’, as follows:
‘386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.’
[19] Should I find the Applicant was in fact dismissed by the Respondent as contended by the Applicant, it will then be necessary for me to consider whether to grant an extension of time. 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’. 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 nor unprecedented, nor even very rare.18 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.19
[20] 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.
[21] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[22] 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.
[23] I now turn to consider the first jurisdictional objection raised by the Respondent, that being the Applicant was not dismissed.
Was the Applicant dismissed (s.386(1))?
[24] As set out above, the Victorian Government Directions mandated that certain classes of defined “Workers” were required to be vaccinated against Covid-19 by prescribed dates to be permitted by their employer to work outside their normal place of residence. The Applicant was a defined Worker and could not perform his work from home given the nature of his work. The relevant date by which he was required to be vaccinated to attend work, while initially 15 October 2022, was subsequently changed by an amended Direction, to 22 October 2022.
[25] The Covid vaccination requirements imposed by the Victorian government via the Directions were communicated to the Respondent’s employees including the Applicant in the 6 October 2021 Letter. While the Applicant believes he received the letter sometime after 6 October 2021, little turns on that as he does not deny having received the letter and if it was after the 6 October 2021, it is only likely to have been a matter of days. That is because the Applicant subsequently communicated with the Dandenong site manager Mr Grant over the period from 14-18 October 2021 regarding the vaccination requirement and confirmed to Mr Grant on 22 October 2021 that he would not be getting the vaccination. Mr Grant responded that in those circumstances he would be unable to attend work from the 22 October 2021 by reason of the Directions.
[26] The Applicant believed that his employment had been terminated by Mr Grant advising him on 22 October 2021 that he would be unable to attend work from 22 October 2021. He held this belief considering the reference in the 6 October 2021 Letter to potential dismissal of employees who were not vaccinated by the prescribed dates. He acknowledged however that he did not receive any notice of termination from the Respondent at any point.
[27] The Applicant’s decision to not get vaccinated placed the Respondent in a position where it was prohibited under the Directions from permitting the Applicant to work for them outside the Applicant’s normal place of residence. This meant the Applicant could not perform his job as a casual ‘General Hand’ for the Respondent and as such the Respondent was prevented from offering him any casual shifts after the 22 October 2021. Importantly, Mr Grant confirmed in his evidence that were the Applicant to obtain a Covid vaccination, the Respondent would be able to again offer the Applicant shifts as a casual employee.
[28] The Applicant has been unable to attend work because of the Directions issued by the Victorian Government and his decision to not get vaccinated. In my view, the situation the Applicant now finds himself in is not a consequence of action on the part of the employer which was either intended to bring the employment to an end or would have had the probable result of bringing the employment relationship to an end 20. The Respondent encouraged the Applicant to get vaccinated prior to 22 October 2021, it explained the implications to the Applicant if he did not, it has not formally terminated his employment and has indicated that should he get vaccinated he will be eligible to be offered further casual shifts.
[29] While the Applicant is aggrieved at the consequences of his decision to not get vaccinated, the Respondent has simply complied with the Directions, as it must, in not permitting the Applicant to attend work unless and until he is vaccinated. That conduct is not consistent with a termination of the Applicant’s employment being at the Respondent’s initiative in my view. It follows that the Applicant was not dismissed within the meaning of s.386(1)(a) of the Act.
[30] As to whether the Applicant was forced to resign because of conduct or a course of conduct engaged in by the Respondent (s.186(1)(b)), the Applicant did not contend that those circumstances arose. In any case I would simply restate that in my view the cessation of casual work being offered to the Applicant was because of a decision of the Applicant to not get vaccinated in combination with the effect of the Victorian Government Directions and was not due to an act of the employer either intended to bring the employment to an end or was such that the Applicant had no real choice but to resign.
[31] It follows from the above that I am satisfied that the Applicant was not dismissed from his employment within the meaning of s.186 of the Act and as such the jurisdictional objection of the Respondent must be upheld. The consequence of my finding is that the application for an unfair dismissal remedy of the Applicant must be dismissed.
[32] If, however I am wrong in my conclusion that the Applicant was not dismissed, it is necessary for me to consider whether to grant an extension of time.
Should an extension of time be granted?
[33] For the reasons that follow I would decline to grant an extension of time.
Reason for the delay (s.394(3)(a))
[34] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 November 2021. The delay is the period commencing immediately after that time until 22 November 2021, although circumstances arising prior to that day may be relevant to the reason for the delay21.
[35] The Applicant states that the reason for the delay was because he was waiting, in vain, for a response from the Respondent to his request for a termination letter that was initially made on 22 October 201 and then again on 8 November 2021. While the failure to respond to that request does not reflect well on Mr Grant even if he was busy in that period, it does not excuse the Applicant’s delay. It ought to have been clear to the Applicant on or about the 8 November 2021 when he sent a second request to Mr Grant that he was unlikely to receive a reply. That still allowed him time to make an application before the 21-day period elapsed on 12 November 2021. Why it took him a further 13 days after his 8 November text to Mr Grant to file his application was not explained.
[36] In the circumstances I am not persuaded that the Applicant has provided an acceptable reason for the period of the delay in the filing of his application. This weighs against a finding that exceptional circumstances exist.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
[37] The Applicant states that he was notified of his dismissal on the same day that it took effect on 22 October 2021. He therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal (s.394(3)(c))
[38] The Applicant took no action to contest his dismissal, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[39] The application was filed ten days outside of the 21-day period. In these circumstances I find there would be little prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
[40] The Act requires me to take into account the merits of the application in considering whether to extend time.
[41] The Applicant was engaged in a position defined as a ‘Worker’ for the purposes of the Victorian Government Directions. This meant that for the Applicant to be permitted to attend the Respondent’s workplace, he was required to be vaccinated in accordance with the Directions and by the dates referred to above at [8] and [11]. The Applicant elected not to be vaccinated and as such was not permitted to attend work and perform the role for which he was engaged. The Applicant objected to being vaccinated against his will and says he was forced out of his job. He further claims that the actions taken by the Respondent have deprived him of an income, were contrary to the Respondent’s duty of care and constituted discrimination.
[42] The Applicant feels aggrieved at the consequence of the Respondent’s compliance with the Directions, resulting in him not being permitted to attend work from 22 October 2021. It is entirely unclear what alternate path could have been taken by the Respondent in circumstances where the Directions compelled the Respondent to not permit the Applicant to attend work, and working from home was simply not an option for the Applicant given the nature of the work. By his own decision to decline receiving a vaccination, the Applicant was unable to fulfil the requirements of the role that he had been employed for.
[43] Having considered all the circumstances, I consider the merits of the Applicant’s case to be weak. This weighs against a finding of exceptional circumstances
Fairness as between the person and other persons in a similar position
[44] 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. However, cases of this kind will generally turn on their own facts.
[45] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Summary on s.394(3) criteria
[46] Having regard to the matters I am required to take into account under s 394(3), and all the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Conclusion
[47] I have found that the Applicant was not dismissed within the meaning of s.386 of the Act. I have further found that if I am wrong in that conclusion and that the Applicant was in fact dismissed I would not grant an extension of time within which to allow the application to be made for the reasons set out above.
[48] The application for an unfair dismissal remedy by the Applicant must consequently be dismissed. An order giving effect to this decision will be issued in conjunction with the decision.
DEPUTY PRESIDENT
Appearances:
M Kremenarov, Applicant.
R Murphy for the Respondent.
Hearing details:
2021.
Melbourne (By Microsoft Teams):
December 21.
Printed by authority of the Commonwealth Government Printer
<PR737093>
1 Exhibit R1, Witness Statement of Michael Grant, dated 13 December 2021 at [5]-[6].
2 Ibid at [9].
3 Ibid, Annexure A – Offer of Casual Employment.
4 Exhibit R1 at [8].
5 Exhibit R2, Second Witness Statement of Mr Michael Grant, dated 20 December 2021 at [4].
6 Ibid, Annexure B – Updated Remondis Covid -19 Response for Coolaroo, Dandenong & Somerton Victoria (Victorian Branches) Letter.
7 Exhibit R1 at [13].
8 Exhibit R1, Annexure B.
9 Ibid.
10 Exhibit R1, Annexure C.
11 Exhibit R1 at [16].
12 Ibid at [17].
13 Ibid, Annexure D.
14 Ibid.
15 Ibid .
16 Ibid at [25]-[26].
17 Exhibit R2 at [8].
18 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
19 Ibid.
20 O’Meara v Stanley Works Pty Ltd (O’Meara) PR973462 citing Pawel v Advanced Precast Pty Ltd Print S5904 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Print N6999 - cited in (2) [97].
21 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
0
2
0