Mrs Petra Sargent v Braemar College Limited

[2022] FWC 885

[2022] FWC 885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Petra Sargent

v

Braemar College Limited

(U2022/3259)

DEPUTY PRESIDENT YOUNG MELBOURNE, 14 APRIL 2022

Application for an unfair dismissal remedy - circumstances not exceptional - application dismissed

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

1. Mrs Sargent’s employment with Braemar College Limited (Respondent) was terminated with effect from 22 February 2022. Mrs Sargent lodged her unfair dismissal application (Application) on 17 March 2022.

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 section 394(3). The period of 21 days ended at midnight on 15 March 2022. The application was therefore filed 2 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under section 394(3). The Respondent opposes the grant of an extension of time.

1. Mrs Sargent’s application was the subject of an extension of time telephone hearing before me at 10.00 am on 14 April 2022. Mrs Sargent appeared on her own behalf. Pursuant to permission granted under section 596(2)(a) of the Act, Mr Ben Tallboys, Russell Kennedy Lawyers, appeared on behalf of the Respondent. Ms Sargent and Mr Douglas Sargent filed witness statements on behalf of the Applicant. Neither were required for cross examination. In addition, it was agreed that Ms Sargent’s Outline of Argument would also comprise her evidence in this matter. Ms Robyn Baddeley, Human Resource Manager for the Respondent, gave evidence on behalf of the Respondent.

Consideration

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made if it is satisfied that ‘exceptional circumstances’ exist. This establishes a high hurdle for an applicant.[1]

1. The meaning of exceptional circumstances was considered by the Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd,[2] where it was noted that, in order to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. The Full Bench also noted that 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 can be considered exceptional.[3]

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

Reason for the delay

1. The Act does not specify what reasons for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[6] the Full Bench noted that the absence of an 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 the circumstances must be considered.[7] The period of the delay to be considered is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application is ultimately made. However, the circumstances from the date the dismissal took effect must be considered in assessing the explanation for the delay.[8]

1. As to the reason for the delay, Mrs Sargent says that she made an error and believed that the statutory time frame for lodging the Application was 21 business days, rather than 21 calendar days. Upon being provided with legal advice that the time frame was 21 calendar days she lodged her claim immediately. Additionally, Mrs Sargent says that her error may have been “heightened by my stress and anxiety over my termination.” [9] Mr Sargent also attests to Mrs Sargent’s stress following her dismissal.[10] At hearing Ms Sargent also said that she was not aware of her rights to make a claim in relation to her dismissal.

1. It is well established that ignorance of one’s rights is not an acceptable explanation for a delay in lodgement.[11] As such, neither Mrs Sargent’s error in understanding as to the manner in which the 21 day period for lodgement is calculated nor her asserted lack of knowledge of her ability to make a claim provide an acceptable or reasonable explanation for the delay. This is so notwithstanding that Mrs Sargent lodged the Application expeditiously upon being advised of the correct time frame. Further, I note that in correspondence with the Respondent on 14 October 2021, many months before her dismissal, Ms Sargent makes reference to the decision of the Full Bench in Kimber v Sapphire Coast Community Aged Care Limited.[12] In these circumstances I am unable to see how it could be said that Mrs Sargent was unaware of her rights to make an unfair dismissal claim. Finally, I accept that Mrs Sargent suffered stress and anxiety following the termination of her employment. However, stress and anxiety following the loss of one’s employment is a common and understandable reaction. It is not unusual, special or uncommon. It does not provide an acceptable or reasonable explanation for the delay.

1. In light of all the above, I do not consider that Mrs Sargent has provided a reasonable or acceptable explanation for the delay in lodgement. This weights against the grant of an extension of time.

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

1. The Applicant concedes that she was notified in writing of her dismissal on 22 February 2022.[13] She was therefore notified of the dismissal on the same day that it took effect and had the full period of 21 days to lodge the Application. Accordingly, in the present circumstances I consider this weighs against the grant of an extension of time.

Action taken to dispute the dismissal

1. The Applicant concedes that she did not dispute her dismissal.[14] This weighs against the grant of an extension of time.

Prejudice to the employer

1. The Applicant submits that the Respondent will not suffer any prejudice.[15] The Respondent concedes that the only prejudice to it will be “the usual prejudice that will follow an extension of time being granted.”[16] I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

Merits of the application

1. An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

1. Mrs Sargent says that the termination of her employment was unfair as her contract does not require her to undergo a medical procedure and her contract of employment with the Respondent has therefore been unlawfully terminated.[17] At hearing she reiterated that her claim was based on breach of contract. She seeks “compensation for anxiety and stress caused and loss of income for the period of standdown prior to termination.” The Respondent says that as the operator of an educational facility it was required to comply with the health directions made under the Public Health and Wellbeing Act 2008 (Vic), including the COVID 19 Mandatory Vaccination (Specified Facilities) Order (No.5) (Direction). It says that as a tuck shop assistant Mrs Sargent could not perform her role remotely and was required to attend the school to perform her duties. It says that it terminated Mrs Sargent’s employment for being unable to perform the inherent requirements of her role, following the introduction of the Direction and the Respondent’s Mandatory Vaccination Policy and Mrs Sargent’s failure to provide evidence that she had been vaccinated against COVID-19 or had a medical exemption.[18]

1. Although the merits of the matter have not been fully tested, on the material currently before me Mrs Sargent’s application appears to have little or no merit. Mrs Sargent’s claim based on breach of contract is not one within the Commission’s jurisdiction. Further, the remedies she seeks are also not within the Commission’s jurisdiction, either being precluded by specific provisions of the Act[19] or requiring the impermissible exercise of judicial power. Ms Sargent is though unrepresented, and may be able to better articulate her claim with legal advice. However, in light of the Direction, the nature of Mrs Sargent’s employment with the Respondent and Ms Baddeley’s evidence, the Respondent appears to have a valid reason for dismissal and to have afforded Mrs Sargent procedural fairness. This weighs against the grant of an extension of time.

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. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Mrs Sargent and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

1. Having regard to the matters I am required to take into account under section 394(3), and all of the matters raised by the Applicant, I am not satisfied that the requisite exceptional circumstances exist in the particular circumstances of Mrs Sargent’s application.

1. Accordingly, I decline to grant an extension of time under section 394(2). Mrs Sargent’s application under section 394 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

R Sargent on her own behalf.

B Tallboys for the Respondent

Hearing details:

2022.
Melbourne.
14 April 2022.

<PR740433>

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [14]

[2] [2011] FWAFB 975

[3] At [13]

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]

[5] Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, per Hatcher VP at [16]

[6] [2018] FWCFB 901

[7] Ibid at [39]

[8] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12] and Ozsoy v   Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]

[9] Form F2, q.1.5, Applicant’s Outline of Argument, q.4

[10] Witness statement of Douglas Sargent

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

[12] [2021] FWCFB 6015

[13] Applicant’s Outline of Argument, q.2 and q.3

[14] Applicant’s Outline of Argument, q.5

[15] Applicant’s Outline of Submissions, q.6

[16] Respondent’s Outline of Submissions at [24]

[17] Form F2

[18] Form F3, attachment A, [11-15], Respondent’s Outline of Argument at [28-30]

[19] See section 392(4) Fair Work Act 2009

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