Mrs Denise Agnew v Karingal St Laurence Limited T/A genU

[2022] FWC 2429

[2022] FWC 2429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Denise Agnew

v

Karingal St Laurence Limited T/A genU

(U2022/7670)

COMMISSIONER YILMAZ MELBOURNE, 13 SEPTEMBER 2022

Application for an unfair dismissal remedy – out of time –extension of time denied.

1. This decision concerns an application by Mrs Denise Agnew (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).

1. The Applicant was dismissed on 30 November 2021 from her position of work, health and safety administration officer based in Geelong which she held since 28 May 2018. This application was filed on 20 July 2022, 211 days late of the 21-day statutory time frame.

1. Karingal St Laurence Limited T/A Genu (genU) is a not-for-profit organisation operating in aged care, disability support and employment services.  Following the onset of the COVID-19 pandemic, Mrs Agnew transitioned to a hybrid work model where duties were shared between work from home and on site. On 29 September 2021 at 11.59pm, the Victorian Government introduced the COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 4). These Directions required the Respondent to collect and hold vaccination or exemption information about workers and not permit any unvaccinated workers on site, on or after 15 October 2021. The COVID-19 Mandatory Vaccination (Workers) Directions followed on 7 October 2021 which required Employers to collect and hold evidence of first dose by 15 October 2021. On 8 October 2021, all workers at genU, including Mrs Agnew, were informed of the Victorian Government Directions that required workers to be vaccinated by 15 October 2021, or had a booking for first dose by 22 October 2021.

1. Mrs Agnew determined that she would not have the vaccination and she was dismissed for serious misconduct for failing to comply with the lawful direction to show proof of vaccination or a valid medical exemption.

1. 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).

1. 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 Agnew’s dismissal was communicated to her on 30 November 2021 and four weeks was paid in lieu. It is not in dispute that the date of dismissal took effect on 30 November 2021.

1. Section 394(2) of the Act requires that applications be made within 21 days of the dismissal.

1. 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.[1] 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.[2]

1. 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.

1. 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.

1. 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.

1. I now consider these matters in the context of the Application.

Reason for the delay

1. Mrs Agnew submits that she had suffered severe stress with an adjustment disorder, anxiety and depressed mood following her dismissal, and consequently she could not think clearly to make an application for unfair dismissal. She states that she decided some two weeks before filing to make an application after she had discussed her dismissal with some people. She provides no evidence to support her incapacity to file an application for the duration of the delay, other than rely on the report of the independent medical examiner that found that she had suffered an “injury, namely, an adjustment disorder with mixed anxious and depressed mood in the context of workplace stressors.”[3] It appears that Mrs Agnew has extracted from the medical report the diagnosis by the medical examiner, however, no evidence was tendered in support.

1. Mrs Agnew in her reply submissions contends that due to the pandemic, restrictions imposed on the community meant that she was unable to obtain appropriate medical treatment and advice. There was no evidence of any steps taken to obtain medical advice throughout the period of the delay in support of her application for an extension of time. To suggest because of restrictions on the community that her ability to obtain medical advice was hindered, does not inevitably follow. Evidence is required and general statements hold little weight, particularly in light of Mrs Agnew’s admission that she only considered making the application two weeks prior, after having a discussion with some people.

1. Further, Mrs Agnew filed a confidential report of the insurer dated 17 November 2021, which summarised the events leading to the workers compensation claim and its rejection, and while the claim was rejected, the insurer permitted provisional payments to cover reasonable medical expenses. The reason for rejecting the claim was that the mental health injury, an adjustment disorder, as confirmed by the independent medical examiner was attributable to management action on reasonable grounds in a reasonable manner.[4]

1. In addition, at the hearing Mrs Agnew advised that she had obtained employment in January 2022 for 25 hours per week. She advised that she has maintained regularity of this employment, which demonstrates that the alleged injury from employment on which she relies for the reason for the delay was not such that that she had no capacity to file an application. As Mrs Agnew had capacity to work, by inference she could have filed an application which requires little effort at least from January 2022.

1. GenU submit there is no medical evidence to support a reason for the delay and Mrs Agnew has failed to discharge the burden of establishing to the Commission’s satisfaction that there is an acceptable explanation.[5]

1. Extension of time applications set a high bar; therefore, the entire period of delay must be explained with credible reasons.[6] Evidence to support the credible the reasons will be expected. Further, the reasons for the delay are to be exceptional.

1. The Act does not specify what reason for delay might tell 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.[7]

1. I am satisfied that Mrs Agnew was aware of her dismissal on 30 November 2021 and she made no effort to make an application until two weeks prior to the lodgement of this application, almost eight months after the dismissal. 

1. Therefore, in the absence of any medical evidence of incapacity, I cannot conclude that there is any valid reason for the delay in favour of granting an extension of time. The application was filed 232 days after the dismissal, and 211 days after the statutory time frame for which there is no credible explanation.

1. Taking into account all of these circumstances, the reason for delay is not exceptional and does not weigh in her favour.

Whether the person first became aware of the dismissal after it had taken effect

1. Mrs Agnew was aware of her dismissal on 30 November 2021. There is no contested evidence concerning the events leading up to and including the dismissal, and the letter of termination confirms the dismissal.

Action taken to dispute the dismissal

1. 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.[8]

1. Mrs Agnew did not contest her dismissal directly with the Respondent but did lodge a workers compensation claim prior to her dismissal which was ultimately rejected after an independent medical examination. As there is no evidence of Ms Agnew contesting her dismissal, I do not consider this consideration to be in her favour.

Prejudice to the employer

1. Mrs Agnew contends that the delay does not causes prejudice to the Respondent, nor had they suffered any financial loss from the delay in the application.

1. GenU does not rely on any prejudice.

1. While I find no prejudice to the Respondent, the authorities provide that the mere absence of prejudice is insufficient to grant an extension of time.[9] This consideration does not weigh up with the other considerations in favour of the assessment that there are exceptional circumstances.

Merits of the application

1. Mrs Agnew submits that her dismissal is unfair because the reason given for her dismissal - that she engaged in serious misconduct by failing to follow a lawful direction is misconceived, in that the direction was not lawful. She states that the directive to take part in an experimental drug trial was coercion and unlawful. She states that the directive placed her in unnecessary physical danger and therefore she had a right to refuse the directive.  Further she states that the directive to take part in a medical procedure can only be given by a medical practitioner and the employer not being a medical practitioner had no right to direct her to take the vaccination. She also states that her contract of employment provided no basis for the directive.[10]

1. GenU submit that the dismissal is not harsh, unjust or unreasonable because Mrs Agnew did not comply with the Victorian Government Health Directive that required her to provide to her employer evidence of compliance with vaccination against COVID-19 or to provide evidence of a medical exemption. As Mrs Agnew did not provide evidence of either, genU could not continue to engage her. GenU states that its direction to comply with government health directions and its policy, was a lawful and reasonable direction. Further genU provided evidence of correspondence with Mrs Agnew regarding the requirement to comply with the Government Directive and its processes including the show cause meeting. It submits that Mrs Agnew was clear in her communication that she did not intend to receive the vaccination unless the Respondent could guarantee the safety and efficacy of the vaccine.

1. 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.[11] 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.

1. Mrs Agnew’s usual workplace was outside the home, at the Geelong office, and her work was captured by the Government Directives. Mrs Agnew submits that the direction by genU was not lawful because the effect was to require vaccination in what she describes as an experimental drug. However, her objection concerns an argument about the Government’s Directives. It is not the Commission’s role to determine whether the Government’s Directive is lawful based on Mrs Agnew’s objections. The Government Directives applied to the workplace and genU was required to comply. This means that Mrs Agnew was required to comply with her employer’s directions to show evidence of vaccination or exemption. She understood the consequences of her decision. The Government Directions provided limited options for employers regarding worker access to the workplace and failure to comply would result in financial penalty.

1. Mrs Agnew further contends that genU issued a medical directive. I disagree with Mrs Agnew, genU rightly did not provide medical advice or direct her to take the vaccine on medical grounds. It correctly informed her to obtain medical advice from a medical practitioner in response to her requests for information on the vaccine’s safety and medical efficacy. Specifically, genU required Mrs Agnew to comply with a Victorian Government Directive imposed on the employer in respect to any worker entering the place of work.

1. Having regard to the matters referred to above, I do find that genU’s directions lawful and reasonable. Consequently, Mrs Agnew’s application is not a strong case on merit, to find this consideration to weigh in her favour.

Fairness as between the person and other persons in a similar position

1. 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.   

1. Mrs Agnew submits her position is similar to any other employee in that she had a right to refuse an unlawful direction because the Respondent had no legal basis for the directive.  

1. GenU submits that this consideration is neutral as there are no relevant issues of fairness in the context of this application. Neither party presented matters similar to Mrs Agnew’s case therefore, I am satisfied on balance, that this consideration is a neutral assessment as to whether there are exceptional circumstances.

Conclusion

1. 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.

1. Accordingly, the application for an unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Ms D. Agnew on her own behalf.

Mr R. Catanzariti for the Respondent

Hearing details:

2022
Melbourne
22 August 2022

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

[2] Ibid.

[3] Applicant’s outline of submissions at Q5.

[4] Applicant’s outline of submissions attachment- Allianz report.

[5] Respondent’s outline of submissions at [18] and [21].

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[9] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.

[10] Applicant’s outline of submissions at Q7.

[11] 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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