Nicholas Wallace v DP World Brisbane Ltd - [2022] FWC 239

[2022] FWC 239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Wallace
v

DP World Brisbane Ltd

(U2021/11583)

DEPUTY PRESIDENT ASBURY

BRISBANE, 25 FEBRUARY 2022

Application for an unfair dismissal remedy

Mr Nicholas Wallace (the Applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the FW Act). His employment with DP World Brisbane Ltd (the Respondent) was terminated on 17 November 2021. The Applicant was dismissed for failing to comply with directions given by the Respondent relating to a COVID – 19 Vaccination Mandate requiring that employees at its container stevedoring terminals be vaccinated against COVID – 19 or provide a medical exemption and have this certified.

Section 394(2) of the FW Act states that an unfair dismissal application 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). The 21 – day period ended at midnight on 8 December 2021. The application was made on 13 December 2021, when it was filed in the Commission, five days outside the required period.

The FW Act allows the Commission to extend the period for an unfair dismissal application to be made, only if it is satisfied that there are “exceptional circumstances” taking into account matters set out in s. 394(3) of the FW Act. 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 factor, 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]

The requirement that there be exceptional circumstances before a further period can be granted 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 application for approval of an enterprise agreement must be made, 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 a further period for an application to be made, 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.

On 24 December 2021 I issued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 239
Decision Date

CaseChat Overview and Summary

In the Fair Work Commission, Nicholas Wallace (the Applicant) sought an unfair dismissal remedy against DP World Brisbane Ltd (the Respondent) following the termination of his employment on 17 November 2021. The Respondent dismissed the Applicant for failing to comply with its COVID-19 Vaccination Mandate, which required employees at its container stevedoring terminals to be vaccinated against COVID-19 or provide a medical exemption. The Applicant lodged his application for unfair dismissal on 13 December 2021, five days after the statutory 21-day period had elapsed. The primary legal issue before the Deputy President was whether the Applicant's circumstances constituted "exceptional circumstances" under section 394(3) of the Fair Work Act 2009 to warrant an extension of time for the application to be made.

The Deputy President examined the Applicant's reasons for the delay in filing the application. The Applicant claimed that he was depressed and unaware of the 21-day timeframe, resulting in his inability to file the application within the specified period. However, the Deputy President found that the Applicant had not provided any medical evidence to support his assertions about his medical condition and was not satisfied that the Applicant had provided an acceptable or reasonable explanation for the delay. The Deputy President also noted that ignorance of the 21-day timeframe was not an exceptional circumstance. Furthermore, the Applicant's participation in unsuccessful court proceedings challenging the Respondent's vaccine mandate did not explain the delay in making his application. Considering all these factors, the Deputy President concluded that there were no exceptional circumstances to warrant an extension of time for the application to be made.

In light of the Deputy President's findings, the application for an unfair dismissal remedy was dismissed. An order to that effect was issued with the decision. The Applicant's arguments did not establish exceptional circumstances, and the application was filed outside the statutory time limit. Therefore, the Deputy President was required to dismiss the application in U2021/11583.

Orders