Mr Matekitonga (Mate') Ataata v Austin Health
[2022] FWC 2118
•13 SEPTEMBER 2022
| [2022] FWC 2118 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Matekitonga (Mate’) Ataata
v
Austin Health
(C2022/2062)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 SEPTEMBER 2022 |
Application to deal with contraventions involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.
Mr Matekitonga Ataata (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from his employment with Austin Health (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent has objected to the Application on the ground that the Application is out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the Application was made on 30 March 2022.
When did the dismissal take effect?
While the Respondent and the Applicant submitted that the dismissal took place on 4 March 2022, I find, that the dismissal in fact took effect on 7 March 2022, when the termination letter was received,[1] and the Applicant was actually advised:
Having considered your response, I write to confirm termination of your employment effective 4 March 2022.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 7 March 2022. The final day of the 21-day period was therefore 28 March 2022 and ended at midnight on that day. The Application was made at 12.22pm on 30 March 2022. The Application was made two days late.
The Application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Background Facts
The Applicant is a 60-year-old Tongan migrant. The Applicant was employed by Austin Health as a full-time COVID-19 vaccine support officer from September or October 2021. His responsibilities were to ensure clients checked in properly using the health service app, register them for their vaccinations, assist with replenishing vaccine supplies, and to assist a medical professional in the post-vaccine waiting room to ensure no patients experienced any adverse effects after vaccination.
In late September 2021, the Respondent became aware that the Applicant was allegedly engaged in conduct of an inappropriate nature in relation to female staff. Reminders were issued to staff by Teams on 19 November 2011, advising staff that they should “maintain professional boundaries, and that hugging/touching in the workplace doesn't have a place”. On 2 December 2021, a similar Teams message went out advising staff to be “respectful of social boundaries, and warned against inappropriate touching, hugging, touching a hand, tapping on the shoulder”.
In late 2021 some female colleagues of the Applicant’s complained to his manager about him putting his arm around them during conversations. On 20 December 2021, an email was sent to the Applicant’s work address by my manager, Mr Sean Mace, as follows (the First Warning):
Hi Mate
I keep missing you on shift to chat with you, and happy to make a time, but I wanted to touch base with you about some concerns that have been raised by a few of staff members.
They have reported that you have touched them inappropriately (mainly grab them around the waist or pinch them on their flank) and has made them feel extremely uncomfortable.
I have posted a couple of times about inappropriate touching and professional boundaries but these actions have continued.
You may not be aware that you do this or have done this, but I wanted to reach out so you could reflect on the actions and ensure moving forward this doesn't occur again
As I said, pop past if you want to chat further Regards
Sean
The Applicant claimed to have not received the above email.
On 23 February 2022, Ms Byford the Nurse Unit Manager informed the Applicant of some further complaints and told him that if these actions happened again, he would need to see Human Resources. The Applicant informed Ms Byford that this was the first time any complaint had been raised with him. Ms Byford then referred to the email dated 20 December 2021, and the Applicant informed her that he had never seen that email.
Later on 23 February 2022, Ms Byford sent an email to the Applicant as follows (the Second Warning):
Hi Mate'
Thank you for meeting me just now to discuss the reports during this morning's shift of inappropriate touching of a female staff member.
A female colleague has reported that you were touching her bra strap through her top, putting your arm around her, and attempting to massage her shoulders whilst being asked to stop.
You replied that you do often hug and grab other staff members, but they are usually men and if someone asks you to stop then you do.
As discussed this is inappropriate behaviour and a serious breach of the Austin Code of Conduct. During these interactions you have breached professional boundaries and COVID safe practices that Austin Health adheres to.
You have been made aware that this conversation was a verbal warning- and any further reports will be escalated to Employee Relations.
I hope you are able to reflect on your interactions, and will ensure they are all professional and appropriate to the workplace setting.
Please let me know if you have any questions or if I need to clarify anything further.
On 3 March 2022, the Respondent sent a letter to the Applicant that included the following:
I write to advise that Nicole De Lacy of Employee Relations has received several complaints of inappropriate touching in the workplace .
We are extremely concerned that we have received several complaints regarding your behaviour and conduct. I had a sent correspondence to you on 20 December 2021 where it outlined that your actions around inappropriate touching were making staff feel uncomfortable following a complaint we had received. It also outlined that these actions were not acceptable.
I would like to invite you to a meeting to discuss our concerns and to give you an opportunity to respond to these allegations . Mate, it is important that you understand that these are serious allegations. and you are still within your probation period and as such a possible outcome could be termination of your employment .
Attached you will find details of the specific allegations made against you, that you are requested to respond to in a meeting with myself and Nicole De Lacy to be held on Friday 04 March 2022 at 3pm in the Repatriation Vaccination Clinic NUM Office. You are invited to be accompanied to this meeting by a union representative or other appropriate support person.
The Applicant claimed he was terminated in the meeting on 4 March 2022, when his manager Mr Mace informed him that he had received an additional complaint, however the Applicant claimed Mr Mace informed him the complaint pre-dated 23 February 2022, and so occurred between the First (not received) Warning and the Second Warning. The Applicant explained what he said at the meeting as follows:[3]
So, I told them that day that I agreed that I put my hand around them, not intending to sexually harass them or anything like that, but more on the fun and affectionate manner, and that I meant no harm or anything like that. And when I put my arm around them there was other people around us, we weren't alone, and in fact I've got the head of security who was standing and talking with us when I put my hand around the lady, and that he didn't even told me to take my hand off and they were all laughing at the joke that was told, so again, my (indistinct) wasn't intentional to cause any harm or sexually harass anyone.
In the letter of termination letter dated 7 March 2022, the reasons given for the Applicant’s dismissal were sexual harassment allegations, and wilful and deliberate actions that posed a risk to the Respondent’s reputation. That letter included the following:
I write in relation to your employment as a Covid-19 Vaccine Support Worker at Austin Health. By way of background, you were engaged on a fixed term contract on 18 October 2021 until 30 June 2022.
Following on from our discussion on Friday 4 March 2022, you were invited to a meeting to discuss several complaints made against you from female staff and external providers. These sexual harassment allegations were put to you and by your own omission, acknowledged you did touch these women. After considering your response, and taking into consideration that you had received feedback from myself on 20 December 2021 and from Salliece Byford on the 23 February 2022, regarding your actions around inappropriate touching that were making staff feel uncomfortable a decision was made to terminate your employment on the grounds it was willful and deliberate and your actions pose a risk to the organisation’s reputation.
Having considered your response, I write to confirm termination of your employment effective 4 March 2022.
The Applicant claimed that before 23 February 2022, he was unaware his actions constituted sexual harassment and never intended them to be either sexual in nature or harassing.
On 22 March 2022, the Applicant engaged the services of a Lawyer, who sent a letter of demand on behalf of the Applicant on 23 March 2022, and subsequently advised the Applicant to file a Form F9 Application for the Commission to deal with an unlawful termination dispute (the Form F9). On 25 March 2022, the Applicant filed the Form F9.
On 28 March 2022, three relevant events occurred:
(a) At 11:43am, the Applicant received an email from the Commission acknowledging receipt of the Form F9, assigning case number C2022/1983;
(b) At 2:55pm, the Applicant received a letter from the Commission advising that he may not be eligible to complete the Form F9, and instructing him to decide what he would like to do as “strict time limits apply”; and
(c) Later in the afternoon, the Applicant received a telephone call from a Commission staff member informing him that he had completed the wrong form and advising him to complete the Application as soon as possible.
Was the application made within such further period as the Commission allows?
Under s 366(2) of the Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4] I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 28 March 2022. The delay is the period commencing immediately after that time until the date the Application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
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.[6]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[7]
The Applicant submitted, in his Form F8, that the delay was for the following reasons:
“I did submit an application within the 21-day deadline but was told by FWC that I had submitted the wrong form. The FWC officer provided me with the correct form and advised me to terminate my first application and re-submit this application instead.
I am very sorry about being late but the wrong form was sent to me by a solicitor I had consulted”
The Respondent submitted that where a representative error is a factor that contributes to the delay in making an application, the conduct of the Applicant is the central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the Application.[8] In this matter the Applicant could have lodged a claim at any time up to and including day 21 of the limitation period, but chose instead to use his lawyer to send a letter of demand on 23 March 2021. The Applicant filed both the Form F9 and the Application.
Conclusion Regarding Delay
The Applicant was clearly advised of the inappropriateness of the Form F9 on 28 March 2022, but took no action to file the Application for two days, notwithstanding the clear notations on the correspondence from the Commission that “Action is Required” and “Strict Time Limits Apply”.
The Applicant clearly took a relaxed approach to the time limitation period. In the hearing he submitted:[9]
… I've mostly satisfied the timeframe and – required by Fair Work Australia. If I was a little bit later here and there, it was unintentional and really, not such a big hurdle, right, not a big issue, the way I thought the – the little bit of lateness that I had was – I had a reason for it, and that I quickly did my best to meet the deadlines, the timeframes that's required for Fair Work Commissions.
Having regard to the above, I am satisfied that the Applicant has not provided an acceptable explanation for all of the period of the delay, and that is a factor that weighs against the Applicant in this matter.
What action was taken by the Applicant to dispute the dismissal?
The Applicant did take action to dispute his dismissal prior to making the Application, but not until the letter of demand of 23 March 2022. This consideration ordinarily enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.
In all the circumstances, I find that the Applicant took action to dispute the dismissal, but only five days before the expiry of the limitation period. I consider this that is a factor that weighs slightly in favour of the Applicant in this matter.
What is the prejudice to the employer (including prejudice caused by the delay)?
In its submissions, the Respondent addressed late service of the Application, but did not state that any particular prejudice would be caused to it in the event the Commission extended the time for the Application to be made. I consider this factor is a neutral consideration.
What are the merits of the Application?
An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter that the Commission is required to take into account in assessing whether there are exceptional circumstances.
The Application did not outline any substantial allegations of the general protections claim other than identifying that, due to the Applicant’s race and older age, “prejudice contributed to my employer not making sufficient effort to effectively communicate these [sexual harassment] complaints to me”.
In the hearing of the matter, the Applicant stated “… even though no one has specifically called me, let's be blunt, black or, you know, or silly (indistinct) or anything offensive like that, there was an incident – there was an incident where a particular supervisor said something that, whether jokingly or not, was a little bit racial, okay?”[10] He went on to describe an incident on 22 December 2021, where a supervisor called him “King Kong of Tonga”. The Applicant was questioned about the basis of his claim as follows:
THE DEPUTY PRESIDENT: What you're saying to me is that notwithstanding that you conducted yourself in a way that you've conceded, touching fellow co-workers, that really, the respondent didn't terminate you for that reason but they've terminated you because of your race, because of something said on 22 December 2021?
MR ATAATA: Well, who – I don't know what's in their mind. Who is going to read their mind? All I'm saying is, all I'm putting up the case is that there's a lot of inaction on their part, inaction on their part and behaviour that can be construed as being discriminatory, okay? We agree that they did not call me 'black' or 'fuzzy hair', or something about my race. That, we agree on.
But their behaviour, right, about not providing me with – forewarning me given that this happened all the way back in October, forewarning me that that was in appropriate. I agreed that I put my hand around them but I didn't see it as inappropriate. I agreed with what they're claimed.
At the meeting all the way back in, you know, February, this was the first time they told me about it, but the way I see it, that behaviour together with not even letting me know that they've extended the probation period without even having the decency to let me know, which will take them about one minute, and then saying things like that, right, saying things that – like the King Kong of Tonga, I find all those behaviour – all those behaviour can be taken as being discriminatory.
It must be firstly observed that the concept of a COVID-19 vaccine support officer touching co-workers in any fashion is beyond sensible comprehension, and belies the infection control measures that are essential to such a role.
It is further beyond any sensible comprehension that an employee could reasonably consider that the conduct that the Applicant conceded occurred is in any way acceptable in a workplace, health related or not. The conduct was completely unacceptable, and was addressed on a number of occasions by the Respondent with the Applicant. The repeated inappropriate conduct of the Applicant appears overwhelmingly to be the reason for the Applicant’s dismissal, not a one off comment from a supervisor approximately ten weeks before dismissal.
While it is ordinarily not possible to make any firm or detailed assessment of the merits in interlocutory matters such as this, on the materials before me I can make an assessment that the Applicant’s case is extremely weak, and the Respondent’s defence is extremely strong. The merits of the Application is a factor that weighs heavily in the Respondent’s favour.
Fairness as between the Applicant and other persons in a similar position
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, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[11] 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.[12]
It is clear that the factors that have been accorded any significant weight in this matter, being the absence of an acceptable reason for the delay and the merits of the claim, are both factors that weigh in the Respondent’s favour. The only factor weighing in the Applicant’s favour, and only slightly, was action taken by the Applicant to dispute the dismissal.
Having regard to all of the matters listed at s 366(2) of the Act, I am satisfied that there are not exceptional circumstances.
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. I decline to grant an extension of time under s 366(2). Accordingly, the Application must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr M Ataata, on his own behalf.
Mr C Boon, of the Respondent.
Hearing details:
2022.
August 10.
Sydney (via videoconference)
[1] Ayub v NSW Trains [2016] FWCFB 5500, at [35] and [36].
[2] 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.
[3] Transcript PN 47.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[8] Patrick Morgan McConnell v A&PM Fornataro[2011] FWAFB 466 at [35]
[9] Transcript PN 116.
[10] Transcript PN 66.
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[12] Ibid.
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