Mr Jurg Kehl v Water Corporation
[2022] FWC 896
| [2022] FWC 896 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Jurg Kehl
v
Water Corporation
(U2022/1882)
| DEPUTY PRESIDENT BINET | PERTH, 29 APRIL 2022 |
Application for an unfair dismissal remedy - circumstances not exceptional – application dismissed
On 11 February 2022, Mr Jurg Kehl (Mr Kehl) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed from his employment with Water Corporation on 14 January 2021.[1]
An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.
Mr Kehl has made an application for an extension of time to file his application. Water Corporation oppose the application.
Directions for the filing of materials were issued to the parties on 10 March 2022 (Directions). The Directions also required the parties to file a Statement of Agreement Facts. These documents were complied in a Digital Court Book (DCB).
The materials filed by the parties did not disclose any factual dispute. In these circumstances, at the request of the Parties, I have determined whether to grant Mr Kehl an extension of time to file the Application solely on the materials filed by the parties without a hearing.
Background
Mr Kehl commenced employment with Water Corporation on 9 October 2017.[2]
During his employment with Water Corporation Mr Kehl was employed in the role of Operator in the Great Southern Region as a member of a six person team.[3]
At the time of his dismissal his employment was covered by the Water Corporation Enterprise Agreement 2021.[4]
In October 2021, the Western Australian Government foreshadowed the introduction of public health orders making vaccination for COVID-19 a requirement to enter certain workplaces.[5]
From October 2021, Water Corporation communicated the requirement to be vaccinated against COVID-19 to all employees, including the Mr Kehl.[6]
On 15 November 2021, Mr Kehl sent an email to Water Corporation stating that he declined to have the COVID-19 vaccine and attaching a template ‘COVID-19 Vaccine Declination Form’.[7]
A Water Corporation Health and Wellbeing Officer replied to him the same day as follows:[8]
“Dear Jurg,
Unfortunately you are not able to simply decline the vaccination to remain employed at Water Corporation given that the State government will impose this obligation by law. This means that when the Direction come into effect Water Corporation must ensure all employees are either vaccinated and/or have an approved exemption in place granted by the Australian Immunisation Registry. Fines of up to $20,000 for an employee or $100,000 for Water Corporation may otherwise apply.
This means that to remain employed at Water Corporation you must have your first dose and/or exemption in place by 31 December 2021. If you near that date without a vaccination or exemption we will contact you to determine your choice and may initiate disciplinary processes given this will become a lawful and reasonable direction given our collective obligations on and after 1 January 2022.
I realise this is not welcomed news given you do not wish to receive the vaccination and this must be a very difficult time given it may mean leaving your place of employment. May I encourage you to please speak with your Manager to obtain support at this time and/or please access our EAP service for free confidential counselling if you feel this will assist. Please also visit your GP or health practitioner to find out more about the vaccinations available in the event that you would like to give further consideration to the Covid vaccines.”
On 23 December 2021, the Western Australian Government issued the Critical Infrastructure (Restrictions on Access) Directions (PH Directions). The PH Directions state that, unless the worker had an exemption as specified in the Directions, ‘water infrastructure workers’ must not enter or remain at a ‘water infrastructure site’ if the worker has not been:[9]
a.Partially vaccinated against COVID-19, meaning one dose of a COVID-19 vaccine registered by the Therapeutic Goods Administration (TGA), from 12:01am on 1 January 2022; and
b.Fully vaccinated against COVID-19, meaning two doses of a COVID-19 vaccine registered by the TGA, from 12:01 on 1 February 2022.
On 23 December 2021, Mr Pat Donovan sent an email to all employees, including Mr Kehl, informing them of the requirements under the Directions.[10] The email attached a link to the PH Directions.
On 24 December 2021, Ms Melinda Posa, Manager People and Employment Relations, (Ms Posa) provided Mr Kehl with a letter outlining the COVID-19 vaccination requirements under the Directions. The letter explained that it was an offence under the Public Health Act 2016 (WA) (PH Act) for an employer or individual to breach the PH Directions. [11]
On 29 December 2021, Ms Posa sent a letter to Mr Kehl letter requesting that he confirm his vaccination status. Relevantly the letter stated that: [12]
“Please ensure that you upload your vaccination (or exemption) evidence into the Portal by close of business Friday, 31 December 2021. If you fail to comply with this requirement, your access to the workplace will be restricted and you will be placed on leave without pay on and from 1 January 2022. We also note that a failure to become vaccinated in circumstances where you do not qualify for a medical exemption in accordance with the Directions may result in termination of your employment.”
Mr Kehl failed to provide evidence of his vaccination status by 31 December 2021 but on that day instead replied to Ms Posa’s letter as follows:[13]
“My response to this is, that I believe you are acting unlawful against human rights and also the commonwealth common law and the Australian constitution which over rides any state mandates. Also you have not presented me with the written Health Directive advice that’s sign by a person of legal powers to do so.”
Ms Posa replied the same day explaining that:[14]
“Hi Jurg,
The letters you have been sent on 24/12 and 29/12 constitute written directives, further the email attached from Pat also constitutes a directive. We have provided you with the appropriate links to the Directions that are signed by the authorising party, please click on that link within the attached email.You have been provided with all information required, it is now your decision to make and the consequences have been outlined to you should you refuse to comply with the laws in place.”
On 4 January 2022, Ms Posa sent Mr Kehl a show cause letter. The letter stated that the Water Corporation were considering terminating Mr Kehl’s employment on the grounds of his non-compliance with the Directions and his failure to follow Water Corporation’s instructions in relation to the PH Direction. The letter provided Mr Kehl with the options of either requesting to take a period of unpaid leave to reconsider his position or proceeding immediately with the show cause process.
Mr Kehl elected to take unpaid leave to have further time to make a final decision about whether he would have the COVID-19 vaccine.[15]
On 6 January 2022 Ms Posa sent an email to Mr Kehl confirming that he would be permitted to remain on unpaid leave up to and including 14 January 2022 and that he would be required to update the Water Corporation by 10am on that date as to whether he intended to comply with the DH Directions.[16]
On 13 January 2022, Mr Kehl sent an email to Ms Posa in response to the show cause letter. The letter raised various purported legal obstacles to the Direction. The content appears to have been pasted into his email from a variety of sources.[17]
On 14 January 2022, Mr Kehl attended a meeting with Ms Posa and Erin Belser, Employment Relations Specialist. Mr Kehl was invited to bring a support person (Termination Meeting).
During the meeting, Mr Kehl was invited to provide any additional information for Water Corporation’s consideration. Mr Kehl did not provide any new information.[18]
Ms Posa then informed Mr Kehl that his employment would be terminated effective immediately for failure to comply PH Direction and for a failure to comply with a lawful and reasonable direction in relation to compliance with the PH Direction.
The same afternoon a letter was sent to Mr Kehl’s personal email address confirming the termination of his employment (Termination Letter). The Termination Letter described the reasons for the termination of Mr Kehl’s employment as follows: [19]
“We refer to our letters dated 24 December 2021, 29 December 2021, 4 January 2022 and our ongoing engagement with you regarding the general requirement that all Water Corporation employees must be vaccinated against COVID-19, unless they have a medical exemption (vaccination requirement).
The vaccination requirement arises under the Critical Infrastructure Worker (Restrictions on Access) Directions (the Directions) made under the Public Health Act 2016 (WA).
In our 4 January 2022 letter, we provided you with the opportunity to take a further period of unpaid leave up to and including 14 January 2022 so that you could make a final decision regarding the COVID-19 vaccine. You elected to take this option. You were also advised that, if you did not meet the vaccination requirement by 14 January 2022, you would be required to show cause as to why your employment should not be terminated on that day.
We asked you to show cause by responding in writing and/or attend a meeting to provide a verbal response and discuss any further considerations regarding your potential termination.
We received a letter from you dated 14 January 2022. We thank you for your response. You also attended a meeting with me and Erin Belser, Specialist – Employment Relations on 14 January 2022 to provide a response verbally. You chose not to have a support person present at this meeting.
Having carefully considered your views and feedback, it is with regret that we confirm that Water Corporation has decided to terminate your employment with immediate effect (Termination Date), given that you have not followed our instruction to comply with the Directions which require you to become vaccinated or provided proof that you are entitled to a medical exemption
by the required timeframe.”
Mr Kehl was paid with his outstanding entitlements including annual leave and long service leave.[20]
Consideration
Subsection 394(2) of the FW Act provides 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 FWC allows pursuant to subsection 394(3) of the FW Act.
The 21 day period does not include the day on which the dismissal took effect.”[21]
If the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[22]
In her witness statement Ms Posa says that she informed Mr Kehl at the Termination Meeting on 14 January 2022 that his employment was terminated effective immediately. She also says that the Termination Letter confirming his dismissal was forwarded to him the same day. Mr Kehl says that he was not ‘aware of my dismissal on the date of dismissal’ but does not explain why.[23]
Based on the evidence before me I find that the dismissal took effect on 14 January 2022.
The date 21 days after the dismissal took effect was Friday 4 February 2022.
The Application was therefore filed seven days out of time on 11 February 2022.
The FW Act allows the FWC 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 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.[24] 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.[25]
Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the FWC must take into account the following:
- the reason for the delay;
- whether the person first became aware of the dismissal after it had taken effect;
- any action taken by the person to dispute the dismissal;
- prejudice to the employer (including prejudice caused by the delay);
- the merits of the Application; and
- fairness as between the person and other persons in a similar position.
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.[26]
The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.[27]
Having taken into account the factors set out in sub-section 394(3) of the FW Act, ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.[28]
The requirement that there be exceptional circumstances before the time for the lodgement of an application can be extended under section 394(3) of the FW Act contrasts with the broad discretion conferred on the FWC under section 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.
Were there reasons for the delay?
The onus is on Mr Kehl to provide a credible reason for the delay.
While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal may be relevant in determining whether the reason for the delay constitutes exceptional circumstances.[29]
In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[30] the Full Bench explained the correct approach by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[31]
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.[32]
The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the FWC have referred to an acceptable or reasonable explanation. Ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.[33]
It appears that Mr Kehl was aware that a time limit applied to the lodgement of the Application:[34]
“While I understand that my late application may not be accepted, I was proceeding on the advice provided by Fair Work Australia, which I now consider may be incorrect and therefore I ask that my application be considered as my dismissal was unfair in all the circumstances.”
Mr Kehl says he did not file the Application until Friday 11 February 2022 because:
“When I was dismissed I contacted Fair Work Australia within 2 weeks of my termination by phone. I advised Fair Work Australia that I worked for the Water Corporation. The Fair Work Australia representative replied that I was considered a Critical Infrastructure Worker and that there was nothing they could do.”
He says that after the 21 day time limit for lodging applications had expired he received advice that his dismissal was unfair. He says that it should not matter how long ago the dismissal has taken place because evidence is not ‘always clearly visible’ in a timely manner. He says that in any event the Application was lodged only a few days late.[35]
Mr Kehl has provided no evidence to substantiate his assertion that he contacted the FWC or that he was given incorrect advice by a representative of the FWC. He did not identify who the representative was or the capacity in which they purported to give the advice. FWC staff are instructed that they are not authorised to provide legal advice and should make that clear if such advice is sought from them. If Mr Kehl genuinely believed that the advice was correct it is unclear why he sought alternative advice or why he believes that alternative advice to be correct.
In the absence of exceptional circumstances whether an Application is filed hours, days, months or years late is irrelevant. As Deputy President Gostencnik noted Ozsoy v Monstamac Industries Pty Ltd:[36]
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
I consider the evidence before me does not provide a reasonable explanation for the delay. The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Did Mr Kehl first become aware of the dismissal after it had taken effect?
Mr Kehl was issued with the show cause letter on 4 January 2022 foreshadowing the possibility of his dismissal. Mr Kehl was made aware of his dismissal as soon it took effect and therefore had the full period of 21 days to lodge the Application. This factor weighs against Mr Kehl being granted an extension.[37]
Did Mr Kehl take action to dispute the dismissal?
Action taken by an applicant to contest the termination, other than by virtue of making the application will be relevant and may weight in favour of granting the extension of time.[38]
While Mr Kehl engaged with Water Corporation prior to his dismissal in relation to the lawfulness of the PH Direction he did not take any steps to contest his dismissal after it took effect other than to file the Application.
Mr Kehl did not take action to dispute the dismissal after his dismissal. This factor weighs against Mr Pringle being granted an extension of time.
Prejudice to the employer
Prejudice to the employer will go against the granting of an extension of time. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[39]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.
A long delay gives rise “to a general presumption of prejudice”.[40]
I cannot identify any prejudice that would accrue to Water Corporation if an extension of time were to be granted. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in consideration of whether there are exceptional circumstances. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.
Merits of the Application
If a claim has merits, this will weight in favour of the grant of an extension of time.[41]
In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice.[42]
Mr Kehl says that his Application if it were to proceed has merit because there was no valid reason for his dismissal.
The requirement for Mr Kehl to produce evidence of a first dose of COVID-19 vaccination to his employer, and the timing for that requirement, was set by the Western Australian government through the Direction. Mr Kehl was forewarned of this requirement and the consequences for his failure to comply with it. His employer engaged extensively with him in an effort to address his concerns with respect to this requirement. Mr Kehl failed to comply with the Direction. This failure meant that he was legally prohibited from attending his normal workplace from 1 January 2022 preventing him performing the inherent requirements of his role. The disciplinary process adopted by Water Corporation was orthodox. Water Corporation invited him to show cause why he should not be dismissed. He was permitted to have a support person attend the meeting held to discuss his proposed dismissal.
Mr Kehl’s circumstances are not dissimilar to many unfair dismissal applications heard by the FWC in recent months brought by applicants in similar circumstances to Mr Kehl. In relation to those applications the FWC to date has:
a.consistently upheld the dismissal of workers who have failed to comply with COVID-19 (and other public health orders (PHO) vaccination requirements; [43]
b.denied applications for extensions of time regarding this cohort;[44] and
c.found that the existence of an applicable PHO is a matter that indicates an application has low prospects when assessing exceptional circumstances.[45]
On the material currently before me the Application has low likelihood of success. This weighs against the granting of an extension of time.
Fairness as between the person and other persons in a similar position
The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of the same kind; however, cases of the same kind often turn on their own facts.[46]
As Commissioner Bissett observed in Murray at [48]:
“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. 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.”
The FWC has recently denied extension of time applications for claims commenced even if they are one day out of time.[47]
Taking into account the criteria set out in section 394(3) of the FW Act, there is no exceptional circumstance that differentiates Mr Kehl’s circumstances from the circumstances of these other individuals whose extension of time applications have recently been denied in a public health order context.[48]
These decisions weight against the granting of an extension of time.
Conclusion
Having regard to the matters I am required to take into account under section 394 of the FW Act, and all of the matters raised by Mr Kehl, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
As I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under section 394(3) of the FW Act.
Accordingly, Mr Kehl’s Application for an unfair dismissal remedy must be dismissed. An Order[49] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
[1] Digital Court Book (‘DCB’) 1
[2] DCB 197.
[3] DCB 197.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid 26-30.
[8] Ibid 31
[9] Ibid 198.
[10] Ibid 33.
[11] Ibid 33-35
[12] Ibid 38-39.
[13] Ibid 91.
[14] Ibid 36.
[15] Ibid 198.
[16] Ibid 48-49.
[17] Ibid 46-48, 198.
[18] Ibid 198.
[19] Ibid 24-25.
[20] Ibid 199.
[21] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[22] Ibid; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[23] DCB 65.
[24] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[25] Ibid.
[26] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[27] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [16].
[28] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].
[29] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
[30] [2016] FWCFB 349.
[31] Stogiannidis v Victorian Frozen Foods Distributors PtyLtd[2018] FWCFB 901, [39].
[32] Ibid.
[33] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
[34] DCB, 4.
[35] DCB 50.
[36] [2014] FWC 479.
[37] Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd[2016] FWC 1291 at [15].
[38] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.
[39] Ibid.
[40] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.
[41] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[42] Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].
[43] See for example: Floors Aucamp v Association for Christian Senior Citizens Homes Inc[2021] FWC 6669; Edwards v Regal Cream Pty Ltd[2022] FWC 257; Shepheard v Calvary Health Care T/A Little Company Of Mary Health Care Limited[2022] FWC 92.
[44] See for example: O’Dea v Grampians Health[2022] FWC 362; Yates v Dahlsens Building Centres Pty Ltd[2022] FWC 329; Ainslie v Groot Eylandt Mining Company Proprietary Limited[2022] FWC 304; Fried v Travel Management Services Pty Ltd[2022] FWC 261; Massey v Centrecare[2022] FWC 250; McIntosh v Barwon Health[2022] FWC 227; Potapova v Alfred Health[2022] FWC 225; Murray v Ambulance Victoria[2022] FWC 215; Scanlan v Aged Care and Housing Group Inc [2022] FWC 174; Ferrato v Virtus Diagnostics[2021] FWC 6460; Petherick v Estia Investments Pty Ltd[2021] FWC 6274.
[45] See Murray v Ambulance Victoria (n 62) at [46]-[47]; McGuire at [26].
[46] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
[47] See for example Battigelli v Respiratory West Pty Ltd[2022] FWC 25 and Murray v Ambulance Victoria (n 62).
[48] See for example: O’Dea v Grampians Health (n 62); Yates v Dahlsens Building Centres Pty Ltd (n 62), Ainslie v Groot Eylandt Mining Company Proprietary Limited (n 62); Fried v Travel Management Services Pty Ltd ( n 62); Massey v Centrecare (n 62), McIntosh v Barwon Health (n 62); Potapova v Alfred Health (n 62); Murray v Ambulance Victoria (n 62); Scanlan v Aged Care and Housing Group Inc (n 62); Ferrato v Virtus Diagnostics (n 62); Petherick v Estia Investments Pty Ltd (n 62).
[49] PR740463.
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