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

1. 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.

1. 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.

1. 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]

1. 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.

1. 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.

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.

1. On 24 December 2021 I issued Directions that required the Applicant to set out in writing why he considered that his circumstances were exceptional having regard to the matters in s.394(3) of the Act and to provide any supporting evidence. The Directions also clearly explained that if a reason for the delay relied on was a medical condition, the Applicant should supply documentation such as a medical certificate or report which specifically explained why the condition prevented the Applicant from filing his application within time.

1. A hearing was listed by telephone at 10.00am on Thursday 27 January 2022. The Applicant filed a written response on 6 January 2022 and gave further evidence at the hearing. At the hearing the Applicant represented himself. Mr S Crilly of Seyfarth Shaw appeared for the Respondent with permission of the Commission, which was not opposed by the Applicant.

1. The Applicant states the reasons for the delay is because he was depressed with his situation following the termination of his employment and was unaware of the 21 – day timeframe. The Applicant states he was depressed because he felt personally responsible to his family for being unable to provide for them financially and that this also placed pressure on his marriage. The Applicant said he spent a lot of time sleeping and because he had not been in Queensland for a long time, did not have a GP that he felt comfortable discussing his situation with. Further, the Applicant states he became distraught and saw no way out of his situation and started to have suicidal tendencies. The Applicant then contacted Lifeline on the suggestion of a family member. At some point, after contacting Lifeline several times, the Applicant said he felt mentally well enough to make an application due to the advice received. Further, the Applicant states he made his application immediately after he felt well enough.

1. At the hearing the Applicant accepted a proposition from me that although the Directions stated that if a medical condition was relied on as the reason for the delay, medical evidence should be provided, the Applicant had not provided any medical certificate or report. The Applicant said it was a personal decision not to see a doctor or a psychologist but maintained that he had made calls to Lifeline which helped him, and that these calls are confidential. The Applicant did not give evidence about when the calls to Lifeline were made.  The Applicant agreed he had no medical evidence to support his assertions about his medical condition.

1. I am not satisfied that the Applicant has provided an acceptable or reasonable explanation for the delay. It is common for employees to suffer adverse effects such as shock and trauma because of dismissal from employment and this on its own is not a basis for a further period being granted.[3] The Applicant has produced no evidence to show he was incapacitated to the extent that he was unable to file an application within the specified time or that there were any exceptional circumstances which would justify an extension of time.  It is also well established that ignorance of the 21 – day timeframe is not an exceptional circumstance. In any event, there is no evidence as to whether the Applicant was unaware of the 21 – day period or whether he simply took no action to make an unfair dismissal application even though he knew that there was a time limit.  I am not satisfied that any of the reasons given by the Applicant individually, or considered together, constitute exceptional circumstances. This weighs against the grant of a further period in which to make the application.

1. The following matters are in my view neutral considerations. Firstly, the Applicant was notified of his dismissal on the same day that it took effect (s 394(3)(b)), and he therefore had the benefit of the full 21 – day period to lodge his application. Secondly, there is no evidence of prejudice to the employer (s 394(3)(d)). I am also aware of other employees of the Respondent who have made applications outside the required time and have provided similar explanations for the delay and have not been granted a further period.  It would be unfair to those persons to grant the Applicant a further period (s 394(3)(f)).   This weighs against a further period being granted, albeit slightly given that while those matters raise similar issues, they are not identical.[4]

1. In relation to steps taken to dispute the dismissal (s 394(3)(c)) the Applicant states he took part in court proceedings with twelve other employees in relation to the Respondent’s introduction of its vaccine mandate which were unsuccessful, and this made the Applicant think he did not have a case. The Applicant said the court proceedings were over before he was dismissed but was not sure of the date on which the proceedings concluded.  The Applicant accepted that apart from participating in those proceedings he had taken no other action to dispute his dismissal apart from making an unfair dismissal application. I consider that is factor also weighs against the grant of a further period in which to make the application.  Further, I note that given the timing of the court proceedings, there is no evidence that the Applicant’s participation in them explains the delay in making his application.

1. As to the merits (s 394(3)(e)), the Applicant said that the Respondents requirement for all employees to be vaccinated against COVID-19 was to prevent the spread of COVID-19 into the port, but that since the Applicant’s termination this had already occurred. The Applicant’s Form F2 application indicates the Applicant’s belief that the Respondent’s vaccination mandate is unlawful, that the available COVID-19 vaccines are experimental and have not undergone safeguard trials and have unknown side effects. The Applicant also stated on his application that the fact that serious adverse reaction and/ or death is listed as a possible side effect should be sufficient grounds for him to not be vaccinated and he should not be put in a position where he is made to participate in this experiment to keep his job.

1. An application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. In this case, the merits turn on disputed points that would need to be tested if an extension of time were granted. While noting that a number of assertions of the Applicant appear to be contrary to decisions of the Commission in other matters involving vaccination, absent specific argument in relation to these points, I consider the merits of the application to be a neutral consideration.

1. Having regard to the matters in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together, such that I should exercise the discretion in s.394(3) to grant a further period for the application to be made. Accordingly I am required to dismiss the application in U2021/11583. An Order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Mr S Crilly of Seyfarth Shaw for the Respondent.

Hearing details:

27 January.

2022.

By telephone.

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

[2] Ibid

[3] Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [58].

[4] U2021/11476; U2022/193.

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