Mr Rory McAleese v Water Corporation
[2022] FWC 2696
•13 OCTOBER 2022
| [2022] FWC 2696 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Rory McAleese
v
Water Corporation
(C2022/3859)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 OCTOBER 2022 |
Application to deal with contraventions involving dismissal
Mr Rory McAleese (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 the Water Corporation (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 June 2022.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 31 May 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.”[1]
As I found above, the dismissal took effect on 31 May 2022. The final day of the 21-day period was therefore 21 June 2022 and ended at midnight on that day. The Application was made on 30 June 2022. The application was made nine 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.
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.[2] I set out my consideration of each matter below.
Background Facts
The Applicant was employed by Water Corporation in the role of Costing & Scheduling Analyst and performed his role at Water Corporation’s John Tonkin Water Centre.
On 20 October 2021, the Western Australian Government announced a mandatory COVID-19 vaccination policy which meant that ‘critical service workers’ would need to be fully vaccinated against COVID-19. Following that announcement, the Respondent invited all employees, including the Applicant, to confirm their vaccination status as soon as possible and to raise any queries or concerns they may have.
On 23 December 2021, the Western Australian Government made the Critical Infrastructure Worker (Restrictions on Access) Directions (the Directions) stating that ‘water infrastructure workers’ could not enter or remain at a ‘water infrastructure site’ unless the worker had been vaccinated against COVID-19 or had a valid exemption as specified by the Directions. The Directions provided that workers must have received one dose of an approved COVID-19 vaccine before 1 January 2022. The Directions applied to all employees at the Respondent, including the Applicant, being ‘water infrastructure workers’ who worked at ‘water infrastructure sites’.
On 23 December 2021, the Respondent sent a communication to all employees. The communication was a direction requiring all employees to be vaccinated against COVID-19, in accordance with the Directions. The Respondent advised employees that they would not be permitted to attend the workplace if they did not meet the COVID-19 vaccination requirements by 31 December 2021 or have a valid exemption, and that failure to comply with the Directions may impact ongoing employment with the Respondent.
On 30 December 2021, the Applicant asked for an extension to receive a COVID-19 vaccination, on the basis that he had a medically documented concern with regards to his heart. The Respondent confirmed the Applicant needed to seek an exemption from the Directions in circumstances where he had a medical condition. The Applicant did not provide evidence of having complied with the vaccination requirement or a valid exemption under the Directions by the deadline of 31 December 2021, and he was not permitted to enter the workplace.
On 4 January 2022, the Respondent sent the Applicant a letter to commence a show cause process. Between 28 January 2022 and 17 May 2022, the Applicant provided the Respondent with around eight medical certificates. On each occasion, the Respondent was prepared to accept the Applicant was unfit for work.
Between 9 March 2022 and 17 May 2022, the Respondent engaged in further correspondence with the Applicant regarding his fitness for work and fitness to participate in the show cause process.
On 11 May 2022, the Respondent directed the Applicant to attend an independent medical assessment. On 23 May 2022, the Respondent received the independent medical report. That report indicated that the Applicant was fit to return to work on full, unrestricted duties.
On 25 May 2022, the Respondent issued a show cause letter to the Applicant. On 29 or 30 May 2022, the Applicant provided a response (the Show Cause Response). That Show Cause Response included the following:
“6. Pursuant to S.351 of the Fair Work Act, the Corporation has an obligation not to discriminate against Rory, on:
a. The basis of any medical impairment or disability;
b. The basis of his political viewpoints; or
c. The basis of his conscientious, moral, or religious beliefs.
7. Rory has a conscientious and religious objection to each of the available vaccines because they have been developed using HEK293, being kidney cells harvested from a live aborted child. He also objects to the injection of a substance into his body that has the ability to alter his body on a cellular level. (Conscientious and Religious Beliefs).
8. Rory also has a political objection to the mandating of an experimental medical intervention with known serious side effects as no entity, including the Corporation has the right to limit Rory’s human rights in this way (the Political Ideology).
9. Further, Rory is suffering from a medical condition arising out of his treatment by the Corporation, which prevents him from being safely vaccinated (Medical Impairment).
10. Pursuant to S.351 of the Fair Work Act, the Corporation may not take any adverse action against Rory because of his Medical Impairment, Religious and Conscientious Beliefs, or his Political Ideology.
11. By making and enforcing the Vaccination Policy in circumstances where:
a. It requires employees to give up their right to medical privacy without reasonable or legitimate operational need;
b. It requires employees to abandon their moral or religious convictions or political views; and
c. It automatically treats employees with a different medical status, religious belief, or political viewpoint differently to other employees, the Vaccination Policy is, on its face and in its enforcement, indirectly discriminatory against employees (including Rory).
12. By making the Vaccination Policy and threatening to dismiss Rory from his employment in reliance upon it, the Corporation has taken adverse action against him in contravention of S.351 of the Fair Work Act.”
On 31 May 2022, the Respondent terminated the Applicant’s employment by providing him with a letter (the Termination Letter). The Applicant’s employment was terminated because he:
(a) failed to comply with the requirement to be vaccinated (or have a valid exemption) against COVID-19 under the Directions; and
(b) failed to follow a lawful and reasonable instruction of Water Corporation to be vaccinated in accordance with the Directions, resulting in the Applicant being unable to perform the inherent requirements of his role.
The Termination Letter included the following:
Breach of privacy
Water Corporation is not covered by the Privacy Act 1988 (Cth) (Privacy Act) as a State Government Trading Enterprise. In any event, the Corporation is not breaching the Privacy Act. Under the Directions, the Corporation is required to collect and maintain evidence of an employee’s vaccination status. The Corporation can therefore legally request your vaccination status, including copies of evidence, to comply with its obligations under the Directions.
On 13 June 2022, the Applicant instructed his legal representative, Mr Grealy, to prepare and lodge a Fair Work General Protections Application involving Dismissal on his behalf. In preparation of the Application, Mr Grealy discovered that the Respondent’s ABN was registered as a WA State Government Entity. As a result, he determined that the appropriate jurisdiction would be the Western Australia Industrial Relations Commission (the WAIRC), and he advised the Applicant that jurisdiction had a 28-day lodgment timeframe. The Applicant provided instructions to lodge the Application on his behalf.
On 28 June 2022, the Applicant lodged an Application with the WA IRC. On 29 June 2022, the Applicant asked Mr Grealy whether the Application had been lodged on time, and Mr Grealy advised the Applicant that the Application was filed the previous day.
On 30 June 2022, Mr Grealy received an email from the WA IRC stating that the Enterprise Agreement covering the Applicant’s employment was registered with the Fair Work Commission, and that the Water Industry Award 2020, under which the Applicant was employed was a federal award registered with the Fair Work Commission.
On 30 June 2022, the Applicant filed the General Protections Application with the Fair Work Commission.
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 21 June 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.[3]
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.[4]
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.[5]
The Applicant noted that:
(a) The Respondent’s ABN is registered as a State Government Entity; and
(b) In the Termination Letter, the Respondent had advised that the Respondent was not covered by the Privacy Act 1988 (Cth) as it was a State Government Trading Enterprise.
In reliance on the above facts and representation, the Applicant’s solicitors erroneously determined that the Respondent was a state-based employer and, as such, the Applicant must be a state-based employee, and the WAIRC would be the appropriate jurisdiction.
Representative Error
The Applicant cites several authorities in support of his submissions including Burns v Aboriginal Legal Service of Western Australia (Inc)[6] and Clark v Ringwood Private Hospital (Clark).[7]
The relevant principles regarding representative error were established in Clark.[8] In Davidson v Aboriginal & Islander Child Care Agency (Davidson),[9] the Full Bench of the Australian Industrial Relations Commission summarised the principles of representative error as follows:
‘In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.’[10]
It is clear from the principles regarding representative error that an assessment of the conduct of the Applicant will be a central consideration. In this matter, far from being distanced from the decision to make the erroneous application to the WA IRC, the Applicant played an active part in changing his instructions from filing a Fair Work General Protections Application on 13 June 2022, to filing the erroneous application to the WA IRC on 28 June 2022. That change in instruction proceeded on weak grounds, without any misrepresentation on the part of the Respondent, in circumstances where the Applicant had outlined the elements of a General Protections Application in the Show Cause Response. There is nothing exceptional about filing an application in the WA IRC when an application should have been made in a General Protections Application to the Commission.
The conduct of the Applicant in this case can be distinguished from the conduct of applicants in other matters before the Commission where there the Commission has accepted evidence of clear instructions to file an application in the correct jurisdiction, and a response from the representative that the application would be filed within the time limit.[11]
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 not take action to dispute his dismissal prior to making the Application. 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 do not find that the Applicant took any action to dispute the dismissal, however I consider this that is a neutral consideration in this matter.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not in its submissions 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 particular circumstances of this matter, however, do allow an assessment of merits. The Applicant’s dismissal was due to the Applicant’s failure to comply with the Directions, and the Respondent’s lawful and reasonable instruction. The Applicant was not dismissed because of any other reasons. While the Applicant submits his claims are “complex” and “novel”, the compulsion directed towards the Respondent by the Directions, and the consequence for the Respondent of breach of the Directions, present clear reasons for the action taken by the Respondent.
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 weak, and the Respondent’s defence is strong. The merits of the Application is a factor that weighs 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 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.[12] 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.[13]
It is clear that the factors that have been accorded any weight in this matter, being the absence of an acceptable reason for the delay and merits of the Application, are both factors that weigh in the Respondent’s favour.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are not exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s Application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
R Grealy for the Applicant.
N Ellery for the Respondent.
Hearing details:
2022.
Sydney (via Videoconference):
October 6.
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496.
[7] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[8] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[9] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.
[10] Ibid [6].
[11] See for example Robinson at [30]; Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [26]-[28].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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