Mr Peter Cole v The Commissioner for Public Employment
[2022] FWC 2700
•11 OCTOBER 2022
| [2022] FWC 2700 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Peter Cole
v
The Commissioner for Public Employment
(U2022/7795)
| COMMISSIONER RIORDAN | SYDNEY, 11 OCTOBER 2022 |
Application for an unfair dismissal remedy
Mr Peter Cole (the Applicant) was employed by the Northern Territory Commissioner for Public Employment (the Respondent) at the Power and Water Corporation. The Applicant commenced employment on 8 May 2006 and was terminated on 2 March 2022.
The Applicant was dismissed due to his inability to perform the inherent requirements of his position by not receiving an approved COVID-19 vaccination in accordance with CHO Direction No. 55.
The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) submitted an unfair dismissal application on behalf of the Applicant on 22 March 2022 (in matter U2022/3441).
Following a conciliation conference with a Fair Work Commission (Commission) conciliator, the AMWU filed a Form F50 – notice of discontinuance form with the Commission on 23 May 2022 to wholly discontinue the application in U2022/3441.
The Applicant then submitted a fresh unfair dismissal application (in the present matter) on 25 July 2022.
The Applicant’s application has been filed 124 days late from the statutory date of 23 March and 66 days after the original application was withdrawn.
This matter was listed for Jurisdictional Hearing by Microsoft Teams on 7 October 2022. Leave was granted pursuant to s.596 of the Fair Work Act 2009 (the Act) for Mr Balogh to represent the Applicant. The Respondent was represented by its HR Manager, Mr Hathaway.
The Act provides that an application for an unfair dismissal remedy made pursuant to section 394 of the Act must be lodged within 21 days after the dismissal took effect.[1] The Commission can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.
In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Section 394(3)(a) – reason for the delay
The Applicant submitted, via his application, that he was disappointed with the outcome of the conciliation and that he deserved better. Mr Balogh made no further submissions in relation to section 394(3) of the Act, except for subsection 3(e). Mr Balogh submitted that the Applicant has a strong case based on the illegal actions of the Respondent by applying a State or Territory law against a federally registered corporation and that the Northern Territory Government did not have the protection of the Crown. Mr Balogh foreshadowed an application in an alternate jurisdiction.
The Applicant did not provide any evidence in the Hearing. The Applicant gave no reason as to why his second application was lodged 66 days after the discontinuance of the original application or why the first application was discontinued by the AMWU.
The Applicant’s disappointment at the result of the first application does not identify an exceptional circumstance. I have taken this into account.
Section 394(3)(b) – whether the person first became aware of the dismissal after it had taken
Effect
There is no evidence to suggest that the Applicant was not aware of his termination on 2 March 2022. I have taken this into account.
Section 394(3)(c) – any action taken by the person to dispute the dismissal
It is not in dispute that the AMWU lodged an unfair dismissal application on behalf of the Applicant within the statutory timeframe. I have taken this into account.
Section 394(3)(d) – prejudice to the employer
Neither party made submissions in relation to s.394(3)(d) of the Act. I consider this to be a neutral consideration.
Section 394(3)(e) – merits of the application
Whilst the Respondent submitted that the anti-vaccination arguments that the Applicant is seeking to rely upon have been dealt with by the Commission on numerous occasions, the Applicant claims to have an action under section 732 of the Act.
In the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[2] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the application to establish that the substantive application was not without merit.”[3]
For the purposes of determining whether to grant an extension of time the Commission “should not embark on a detailed consideration of the substantive case.”[4]
On the basis that the Applicant is raising an argument that I have not considered previously, I am satisfied that there will be contested submissions in a merits-based hearing. As a result, I adopt the obiter in Kornicki.
I find the merits of the application to be a neutral consideration. I have taken this into account.
Fairness
I am satisfied that there have been other employees of the Northern Territory Commissioner for Public Employment who have failed to gain an extension of time to lodge their application due to their termination for not complying with CHO Direction No. 55. I have taken this into account.
Conclusion
I have taken into account all of the submissions that have been provided by the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.
The Act does not specify what reason for delay might tell in favour of granting an extension of time for the Applicant to lodge their application, 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, whilst 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.[5]
The Applicant has not provided any credible reason for the 66-day delay in his application, from the date that the AMWU discontinued the first application. In most contested cases before the Commission, at least one of the parties is disappointed with the outcome. I do not know why the AMWU discontinued their application, but I assume that the matter was discontinued with the consent of the Applicant. If not, had the Applicant filed his fresh application within a timely manner from the date of the discontinuance, then the Applicant may have had an arguable case in relation to his fresh application. However, this did not occur.
I am not satisfied that there are exceptional circumstances which would justify the granting of an extension of 66 days. As a result, I decline to grant an extension of time.
The Application for an extension of time is dismissed.
As a result, the application for an unfair dismissal remedy is also dismissed.
I so Order.
COMMISSIONER
[1] Section 394(2)(a) FW Act. Note that the 21 days for the lodgement does not include the date that the dismissal took effect by reason of operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6-where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[3] Ibid.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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