Mr Peter Erbacher v Riverina Fresh Pty Ltd
[2022] FWC 613
| [2022] FWC 613 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Peter Erbacher
v
Riverina Fresh Pty Ltd
(C2021/7778)
| COMMISSIONER YILMAZ | MELBOURNE, 18 MARCH 2022 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time.
On 15 November 2021, Mr Peter Erbacher lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Riverina Fresh Pty Ltd (Riverina Fresh). Mr Erbacher commenced employment on 2 August 2021 and his dismissal took effect 18 October 2021, while still subject to a probationary period of employment.
Mr Erbacher was employed by Riverina Fresh in the position of process worker from 2 August 2021.
Riverina Fresh submit that as a dairy producer it identified sensitivities to an outbreak of Covid-19, much like the experiences across NSW. Based on NSW Government guidelines, Riverina Fresh submit it introduced a policy to protect the health and safety of its employees (both vaccinated and unvaccinated) and the viability of its operation by requiring two weekly rapid antigen tests (RAT) and for those employees that were not vaccinated against Covid-19, the requirement to conduct a weekly PCR test. RAT Testing stations were set up before employees enter the premises. Employees required to undertake a PCR test were expected to complete the test at a government administered site outside of work hours.
As Mr Erbacher had elected not to be vaccinated, he was required to partake in both sets of testing processes. On the day the policy procedures were introduced, Mr Erbacher fronted for work joining the testing queue, but as he reached the front, he stated that he refused to undergo the RAT. Mr Erbacher was instructed to leave the site.
The letter of termination of employment refers to the discussions with Mr Erbacher prior to commencement of the Covid-19 testing program to help Riverina Fresh minimise the risk of the virus in the workplace, it also reiterates that the direction to participate in the testing process is a lawful and reasonable direction. The letter confirms the date of dismissal is 18 October 2021 and Mr Erbacher received payment of one week of notice in lieu.
Mr Erbacher failed to attend both the directions hearing and the extension of time hearing. I am satisfied that Mr Erbacher was aware of the hearing dates as he expressed his preference for email communication in his application form and he filed his outline of submissions for the extension of time hearing though email. I also note the evidence of email communications between the Applicant and Respondent prior to dismissal.
Several attempts were made to contact Mr Erbacher by phone at both the directions and extension of time hearing to no avail. However, I am aware that Mr Erbacher did contact my Associate sometime after the directions hearing complaining that chambers should have texted him. No satisfactory explanation was given for his failure to attend. Mr Erbacher lodged his application before the Commission and expressed a preference for email communication. Where he does not answer his emails or his phone, the responsibility falls on him and not the Commission. Mr Erbacher has a responsibility to advance his application and I am satisfied that the Commission has taken appropriate steps to inform him of the process and took several steps to contact him. I observe that Mr Erbacher did not respond to 2 telephone calls, where messages were left and an email that also went unanswered. I am satisfied that he was his failure to press his application is his own responsibility. I also note that Mr Erbacher did submit his outline of submissions consistent with my directions for the extension of time hearing, and the date of hearing was clearly identified in those instructions for the filing of materials.
On the day of the hearing the Respondent attended, together with their legal representative. I granted leave to the Respondent to be legally represented at the hearing and the hearing proceeded in the absence of the Applicant. Messages were left for Mr Erbacher that the hearing would proceed in his absence if he did not contact chambers. The hearing was delayed by 22 minutes while efforts were made unsuccessfully to contact Mr Erbacher.
This decision is made taking into account the written submissions of the parties and the oral submissions of the Respondent on the day of the scheduled hearing.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 7 days after the 21-day statutory time limit.
Applicant’s submissions
Mr Erbacher submits that he exercised a workplace right by inquiring into the health and safety of the Covid-19 testing procedures that Riverina introduced. He submits that the testing policy required two RAT tests per week and for those that are not COVID-19 immunised a weekly PCR test, he further adds that the policy was introduced without any consultation and with little notice.
Mr Erbacher submits that his dismissal is a contravention of his workplace rights in terms of section 340 Protection of Workplace Rights.
Respondent’s submissions
Riverina Fresh submit that Mr Erbacher was dismissed for failing to follow a lawful and reasonable direction to partake in the Covid-19 testing program introduced to protect its workforce and the continued operation of dairy production.
Riverina Fresh submit that Mr Erbacher did not raise any concerns in regard to the consultation prior to the introduction of the policy, it submits that the consultation process engaged with the Union on site, and the policy was formed and applied consistent with NSW Government guidelines. It contends that it recognised a real risk of the virus to Riverina Fresh and its workforce that necessitated reasonable controls, and therefore the testing policy was lawful and reasonable response.
Riverina Fresh also contend that Mr Erbacher’s application lacks sufficient reasons to meet the exceptional circumstances required to warrant an extension of time and submits that the Commission should dismiss the application.
Consideration
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e) Fairness between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[1] where it was held that:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[2]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission on 15 November 2021, 7 days late. Mr Erbacher was aware that his dismissal took effect on 18 October 2021, and from his submissions it appears that he was aware of the 21 day timeframe for applications to be lodged with the Commission.
Mr Erbacher submits that his application was filed on time because he allegedly posted his application within the 21 days. He submits that the Commission website was ambiguous and that it did not occur to him that posting within the 21 days would not mean that the application was lodged on time.[3] Mr Erbacher also refers to postal delays because of the impact of Covid and describes the delay as a technicality.
The application form completed by Mr Erbacher provides the following relevant information concerning the 21 calendar day timeframe for applications and the ways a person may obtain further information or assistance:
“Lodging your completed form
1. Lodge your application, along with any supporting documents, with the Commission within 21 calendar days after your dismissal took effect. You can lodge your application online using the Commission’s Online Lodgment Service (OLS) or by post, fax or email, or in person at the Commission’s office in your state or territory…
Where to get help
Commission staff & resources
Commission staff cannot provide legal advice. However, staff can give you information on:
· Commission processes
· how to make an application to the Commission
· how to fill out forms
· where to find useful documents such as legislation and decisions
· other organisations that may be able to assist you.
The Commission's website also contains a range of information that may assist.”
Despite the Commission’s website and the form stating that applications must be ‘lodged’, if Mr Erbacher assumed ‘posted’ meant the same as lodged, he could have availed himself of the assistance available, which he apparently did not. As can be seen from the material published by the Commission, applications need not be lodged by post. I am satisfied that Mr Erbacher had access to email and lodging by post was not necessary. I also do not consider that the delay in post is an acceptable explanation satisfying the requirements for an extension of time.
There must be a credible reason for the delay.[4] I do not agree that the lateness of the application is a technicality. Having regard to Mr Erbacher’s submissions, they cannot be accepted as being exceptional, unusual, out of the ordinary, uncommon or special. I am not satisfied that he has demonstrated credible reasons regarding this consideration, and I consider the reasons given for the delay do not weigh in his favour.
Steps taken to dispute the termination
Riverina Fresh submit that Mr Erbacher did not challenge his dismissal and the first they became aware of the application was when it was served on them. However, they do submit that they were aware of Mr Erbacher’s strong views about vaccination and subsequently his reasons for refusing compliance with testing as a condition of entry to the workplace. They did not express any awareness that an application challenging the dismissal was likely.
This consideration does not weigh in Mr Erbacher’s favour.
Prejudice to the employer
Mr Erbacher does not address this consideration,
Riverina Fresh submit there is no substantial prejudice to it should the application be granted.
However, even the mere absence of prejudice is an insufficient basis to grant an extension. This consideration therefore is neutral.
Merits of the application
Mr Erbacher admits to failing to comply with Riverina Fresh’s weekly testing arrangements. He submits that the weekly testing is invasive but states that if he could forego the PCR testing, he would have agreed to the RAT. However, the evidence shows that Mr Erbacher refused the first test being a RAT. Mr Erbacher’s concerns in relation to the PCR testing is that it is an invasive test and that it is unreliable in identifying Covid-19.[5] Dismissal for allegedly making inquiries and refusal to participate in the testing he submits is a contravention of s.340 of the Act.
Riverina Fresh contends that Mr Erbacher’s application lacks merit. It is a condition of employment for all employees to comply with the company health and safety policy regarding testing to minimise risk of Covid infection. They submit and tendered evidence of communication between it and Mr Erbacher about the introduction of the policy. It submits that the dismissal was solely because Mr Erbacher refused to comply with the testing and is not because he inquired about the Company’s health and safety procedures.
Further, Riverina Fresh submit that the policy is consistent with its statutory obligations and the requirement that employees submit to the testing is a reasonable and lawful direction.
Having considered the submissions and evidence tendered, I cannot conclude that Mr Erbacher has a meritorious application. While I have not tested the merit and it is not appropriate to do so in an extension of time, Mr Erbacher’s allegations that the Company’s testing policy and his allegation that his dismissal was for inquiring into the health and safety procedures is without merit. The policy of testing is a reasonable response to the risk of infection in the workplace and to submit the cause of the dismissal is related to the inquiry appears weak on the evidence. Therefore, I do not consider this consideration in Mr Erbacher’s favour.
Fairness between the person and other persons in a like position
Mr Erbacher did not address this consideration.
The Respondent was not aware of any matters relevant to this consideration.
Consequently, I find this consideration neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of the considerations that I have decided not to grant an extension of time.
Having considered the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Mr A. Maher for the Respondent
Hearing details:
2022.
Melbourne (by video)
March 1
[1] [2011] FWAFB 975.
[2] Ibid at [13].
[3] Applicant’s outline of submissions at Q1d.
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[5] Applicant’s outline of submissions at Q1h.
Printed by authority of the Commonwealth Government Printer
<PR739467>
0
0
0