Mrs Audrey Harmse v Association for Christian Senior Citizens Homes Inc
[2022] FWC 2443
•14 SEPTEMBER 2022
| [2022] FWC 2443 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Audrey Harmse
v
Association for Christian Senior Citizens Homes Inc
(U2022/8009)
| COMMISSIONER YILMAZ | MELBOURNE, 14 SEPTEMBER 2022 |
Application for an unfair dismissal remedy - out of time - extension of time denied.
This decision concerns an application by Mrs Audrey Harmse (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) against the Association for Christian Senior Citizens (the Respondent).
The Applicant was dismissed on 30 November 2021 from her position of pastoral care worker which she held since 4 July 2021. This application was filed on 2 August 2022, 224 days late of the 21-day statutory time-frame.
The Respondent is a registered charity operating residential aged care and retirement living facilities. In August 2021, the Respondent informed all staff of the National Cabinet decision to require all residential aged care workers to be vaccinated against COVID-19 commencing from 17 September 2021.[1] Additionally, in the email, the CEO informed staff of the Department of Health and Human Services (DHHS) webinar scheduled on 17 August 2021 regarding the rollout of compulsory vaccination.
With the onset of the COVID-19 pandemic, residential aged care facility workers were impacted early by government decisions requiring compulsory vaccination. On 28 June 2021, the Prime Minister and all state and territory governments agreed to mandate the first dose of the vaccine for aged care workers by mid-September 2021. A series of sequential Victorian COVID-19 Mandatory Vaccination Directions and Orders were made pursuant to the Public Health and Wellbeing Act 2008 (Vic), with the result being that effective from 30 November 2021, no unvaccinated worker may enter or remain on premises for the purpose of work at a residential aged care facility. The Directions and Orders further required operators of residential aged care facilities to request, collect and store information on vaccination status of its employees or volunteers entering the facility to perform work. Failure to comply with the Directions and Orders would result in significant penalties against the residential aged care facility operator.
Mrs Harmse was aware of the mandatory vaccination decisions impacting residential aged care workers as she attached in her materials the Australian Government advice as at 3 August 2021- Mandatory Vaccination of Residential Aged Care Workers.[2] It is also not in dispute that the Respondent communicated to employees, including M Harmse the changes to vaccination mandates affecting the facility and its workers as they became known.
On 29 September 2021 at 11.59pm, the Victorian Government’s, COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4) came into effect. These Directions required the Respondent to collect and hold vaccination or exemption information about workers and not permit any unvaccinated workers on site.
Mrs Harmse held strong views against taking the vaccination and she informed her employer that she would resign if it was mandated that she be vaccinated. Mrs Harmse also communicated to the Respondent that she may have qualified for an exemption based on natural immunity against COVID-19. She arranged with her medical practitioner to obtain a serology test which confirmed antibodies for SARS-CoV-2, and an exemption request was submitted to Australian Immunization Records. The Respondent was kept informed of every step taken by Mrs Harmse and her general practitioner in obtaining a formal record of exemption. On the basis of this advice and the serology report, the Respondent agreed pending the result from Australian Immunization Records, to treat Mrs Harmse as if she had an exemption.
On 17 November 2021, the facility experienced an outbreak of COVID-19 and Mrs Harmse was denied access to perform any work as she could not demonstrate that she had been vaccinated. On 18 November 2021, Mrs Harmse wrote to the Respondent that she decided that she would not resign as she formed the view that her resignation suggested that she no longer wished to continue working at the facility.[3] On the same day, a letter of termination was sent to Mrs Harmse which stated that due to the vaccination requirements it could not permit her access to the facility to perform her duties and consequently her employment was terminated as at close of business 19 November 2021.[4]
Section 394(2) of the Act states 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 Commission allows pursuant to s.394(3) if it is satisfied that there are exceptional circumstances.
The date the dismissal “took effect” is when notice of the dismissal is communicated to the employee and if notice is given, then the dismissal takes effect at the end of the notice period. Mrs Harmse’s dismissal was communicated to her on 18 November 2021 with her termination of employment to take effect from close of business 19 November 2021.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made, only if it is satisfied that there are ‘exceptional circumstances’. 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.[5] 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.[6]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.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.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
a)The reason for the delay;
b)Whether the person first became aware of the dismissal after it had taken effect;
c)Any action taken by the person to dispute the dismissal;
d)Prejudice to the employer (including prejudice caused by the delay);
e)The merits of the application; and
f)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.
I now consider these matters in the context of the application.
Reason for the delay
Mrs Harmse submits that at the time of the dismissal she was overwhelmed by a series of unfortunate events affecting her husband and both of her sons, her dog and a friend. These unfortunate events occurred over November and December 2021.[7] On 19 November 2021, she wrote to her employer expressing her disappointment in the decision to let her go, but also indicates that she does not blame her employer for the situation it finds itself in and concludes by thanking it for the opportunity to have been back at the facility. Mrs Harmse states that as she received no response to this correspondence, she concluded that the dismissal was final and no further correspondence would be entered into.[8] During the hearing Mrs Harmse stated that her personal pressures regarding her family flowed into January 2022 but did admit that she took no action to file an application as “she wanted to move on”. It was not until June or July when she discussed her dismissal with a friend that she determined that as a matter of principle she should make the application. When asked what she meant by the term “principle”, Mrs Harmse stated that the dismissal was unfair as she considers that her employer should have considered options other than dismissal.
The Respondent reiterated that the requirement to comply with government directions and orders were clear and while it understood Mrs Harmse’s personal position on vaccination, the only evidence it had to consider an exemption was a copy her serology report.[9] The note in the report provided that while SARS-CoV -2 antibody was detected, the report provided no apparent exemption on which it could rely. Relevantly, the report stated:
“Serology is suggestive of exposure to SARS-CoV-2 (COVID-19).
Please note that the correlation of these tests with protective immunity is currently unavailable.”
Further, the Respondent states that while a series of unfortunate events may have interrupted Mrs Harmse from filing an application, the further period from January until August 2022 (a period of at least 7 months) is unexplained as to why no application was made. It submits that this lack of explanation cannot satisfy the requirement that there are exceptional circumstances to warrant an extension of time.[10]
Extension of time applications set a high bar; therefore, the entire period of delay must be explained with credible reasons.[11] Evidence to support the reasons will be expected and the reasons for the delay must be exceptional.
The Act does not specify what reason for delay might weigh in favour of granting an extension. 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, 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. [12]
I am satisfied that Mrs Harmse was aware of her dismissal on 19 November 2021, and it is apparent that she made no effort to make an application from the date of her dismissal until 2 August 2022. This is a period of almost 8 months after the 21-day statutory time frame for making an application. While the explanations given for Mrs Harmse’s distress and attention concerning her family circumstances are not questioned, I do observe that no evidence was tendered in regard to whether the effect of those circumstances were such to prevent her from making an application. I further observe that on 22 December 2021, Mrs Harmse sent through a copy of her exemption certificate to the Respondent and yet made no application at the same time. No explanations were given for the period January until her application on 2 August 2022.
The absence of explanation and evidence for the delay does not favour an extension of time. The application was filed 245 days after the dismissal, and 224 days after the statutory time frame for which there is no credible explanation.
Taking into account all of these circumstances, the reason for delay is not exceptional and does not weigh in her favour.
The bar to grant an extension is high and in addition to the reasons for the delay, I am to consider the balance of provisions in s.394(3)(b)-(f) of the Act.
Whether the person first became aware of the dismissal after it had taken effect
Mrs Harmse was aware of her dismissal on 19 November 2021. There is no contested evidence concerning the events leading up to and including the dismissal.
Action taken to dispute the dismissal
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[13]
Mrs Harmse submits that she contested her dismissal and her final correspondence dated 19 November 2021 was not responded to. She further submits that her notification and provision of her exemption on 22 December 2021 are relevant to this consideration.
The Respondent contends that the dismissal was not challenged.
I have considered the correspondence sent by Mrs Harmse both on 19 November and 22 December 2021 and I have formed the view that the correspondence is not a challenge to her dismissal. It is evident from the correspondence that she was disappointed, but an expression of disappointment is not a challenge. Relevantly, the email correspondence of 22 December 2021, at the time the exemption certification was sent states:
“As I am sure you will see with the attachment, I got my that exemption I applied for. I thought I will just forward it to you, even though it is late for my work, but at least my application for exemption was excepted, temporary exemption at least. It is a small win for me personally, but it does show that miracles still happen. Now at least I can go and have a haircut.
May God bless you and your family this Christmas.”[14]
Mrs Harmse states that she just wanted to move on, and both emails reflect this sentiment. As there is no evidence of Mrs Harmse contesting her dismissal, I do not consider this consideration to be in her favour.
Prejudice to the employer
Mrs Harmse contends that the delay does not cause prejudice to the Respondent. She submits that she wishes no harm to the Respondent, in fact she speaks highly of them. She makes the point that their predicament was due to Government Directions and Orders to control the spread of COVID-19 infection, not the direct control of her employer, nevertheless she considers that the Respondent’s requirement for compliance took priority over the wellbeing of staff. This principle is the reason for making the application despite its delay.
The Respondent contends that Mrs Harmse did eventually receive an exemption, while temporary; and had the matter been filed on time, she would not have had the benefit of the of the additional evidence. In effect the delay, if granted, it contends has the potential to disadvantage the Respondent.
A delay of 224 days, which is a lengthy period may have the potential of prejudice or disadvantage, although the Respondent simply refers to the additional evidence which otherwise would not have been available at the time of the dismissal as the reason for disadvantage. As there are no other reasons for any disadvantage or prejudice, I do not consider any cause for prejudice. Despite the absence of prejudice to the Respondent, the authorities provide that the mere absence of prejudice is insufficient to grant an extension of time.[15] This consideration does not weigh up with the other considerations in favour of the assessment that there are exceptional circumstances.
Merits of the application
Mrs Harmse submits that her dismissal is unfair. She submits that the “Federal Government’s plan for mandatory vaccination in aged care” refers to natural immunity as a reason for exemption.[16] As she had Covid in August 2020, she spoke to her doctor about assessing her immunity. Her actions to obtain an exemption took place ahead of the cut of dates for the presentation of compliance or exemption. On receipt of her serology report, which was submitted to Australian Immunisation Records, she also provided a copy to her employer and kept them up to date on her actions to obtain the exemption. Despite the employer originally indicating a willingness to treat her as exempt, in November following an outbreak of COVID-19 in the facility and the Government Order preventing any worker entering the workplace unvaccinated she was dismissed. Having received the exemption, albeit well after the dismissal, she felt vindicated that had she continued to be treated as exempt she could have continued in employment at least until the expiry of the exemption.
The Respondent described the process adopted in informing staff of Government Directives and Orders as they impacted the facility. This process it says sufficiently created awareness of the requirements and the potential impact on employment. In respect to Mrs Harmse’s serology result, it noted that it provided confirmation that despite the presence of SARS-Cov-2 antibodies, there was no correlation to protective immunity. As a pastoral care worker, Mrs Harmse was captured by the Government Directives and Orders and her role required meeting with residents in person. Further altering the status of her employment from part-time to casual as suggested by Mrs Harmse, would not remove her from the obligations to comply with evidence of vaccination or exemption. It considered that leave without pay and other options including work from home were not suitable and as she decided against resignation and advised that it should follow the advice of the Fair Work Ombudsman, it took the appropriate steps to bring her employment to an end.[17]
The Commission is not required to consider the detail of the substantive case but may consider whether the Applicant has a sufficient case based on the merits.[18] The Victorian Government Directives imposed an obligation on employers in relation to vaccination to limit the spread of COVID-19 within its workforce. This means that if workers are required to perform work outside of their place of residence, the employer must collect, record and hold information about a worker’s vaccination status. Unless the worker meets the vaccination obligations, no work can be conducted in the workplace where that workplace is outside of the worker’s normal place of residence.
Mrs Harmse’s usual workplace was outside the home and her work was captured by the Government Directives. The Government Directives applied to the Respondent, and it was required to comply resulting in lawful directions to show evidence of vaccination or exemption. It is unfortunate that the exemption did not come through before her dismissal. However, despite its delay the certificate of exemption only applies for the period 21 December 2021 to 28 February 2022. Mrs Harmse was required to provide evidence of vaccination or exemption from 30 September 2021 if she was to enter the workplace. She was also dismissed on 30 November 2021. The certificate of exemption does not cover the period 30 September to 30 November 2021. Further, Mrs Harmse confirmed that she decided not to receive the vaccination post the exemption, which means that the exemption would have had limited practical impact on her employment. Based on the above dates, Mrs Harmse had the benefit of a further two-month period despite not providing evidence of vaccination or an exemption. I accept that Mrs Harmse stated that she had considered the Novavax vaccination, and perhaps had the exemption been available to her employer it may have been sufficient to maintain her employment temporarily until the vaccine became available. Unfortunately for Mrs Harmse, her employer had to make a decision to comply with its obligations on the facts it had on hand, and the exemption and the possibility of Novavax as a viable vaccination were not sound material facts on which it could rely.
Having regard to the matters referred to above, while I accept Mrs Harmse’s circumstances, on an objective assessment she did not comply with her obligations to produce evidence of vaccination or exemption within the required timeframe. The Respondent acted on the factual material on hand. Consequently, I do not consider that Mrs Harmse’s application is a strong case on merit, therefore I find this consideration to not weigh in her favour.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Mrs Harmse submits she was treated differently to two employees that were granted unpaid leave. However, the Respondent submits that Mrs Harmse’s circumstances were not the same. The two employees were granted unpaid leave to finalise their vaccination course, while Mrs Harmse made it clear that she had no intention of receiving the vaccinations that were publicly available.
On this basis, there are no matters relevant to this consideration. I am satisfied on balance that this consideration is a neutral assessment as to whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3)(a) to (f) and all of the matters raised by the Applicant, I am satisfied that there are not exceptional circumstances to grant an extension of time from among one or the collective of the required considerations.
Accordingly, the application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
Ms A. Harmse on her own behalf.
Mr M. Morgan for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
31 August
[1] Respondent’s outline of submissions attachment 1- email of 16 August 2021 from CEO to all staff.
[2] Applicant’s outline of submissions attachment C.
[3] Applicant’s outline of submissions at 7.14.
[4] Applicant’s outline of submissions attachment A.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[6] Ibid.
[7] Applicant’s outline of submissions at 4.
[8] Ibid.
[9] Applicant’s outline of submissions attachment D.
[10] Respondent’s outline of submissions at 1g.
[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[14] Applicant’s outline of submissions at attachment K.
[15] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.
[16] Applicant’s outline of submissions at [7.1]- [7.2].
[17] Respondent’s outline of submissions at
[18] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Guidice J, Acton SDP, Gay C, 10 November 2000)[14].
Printed by authority of the Commonwealth Government Printer
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