Nicola Morris v Department of Family, Fairness and Housing, Victoria Government
[2022] FWC 1056
| [2022] FWC 1056 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicola Morris
v
Department Of Family, Fairness And Housing, Victoria Government
(U2022/3980)
| COMMISSIONER CIRKOVIC | MELBOURNE, 5 MAY 2022 |
Unfair dismissal application filed out of time –circumstances not exceptional – application dismissed
Ms Nicola Morris, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with the Department of Family, Fairness and Housing (Victoria) whom I will refer to as the Respondent.
Before granting a remedy, the Commission must be satisfied that the application was not made out of time.
Having heard the parties, I now proceed to give these reasons for my decision ex tempore.
This published decision reflects the decision I gave ex tempore on 5 May 2022 with corrections for grammatical, syntactical and any other insignificant errors.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The parties agree, and I so find, that the dismissal took effect on 28 February 2022 and the application was made on 4 April 2022, some 35 days after the dismissal took effect. I am therefore satisfied that the application was not made within 21 days after the dismissal took effect. It remains to be considered whether it was made within such further period as the Commission allows.
The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:
(a) the reason for the delay;
(b) whether the Applicant first became aware of the dismissal after it had taken effect;
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.
The first matter is the reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 22 March 2022. As a majority of the Full Bench noted at paragraph 12 of its decision in Shaw v ANZ Bank, which is published at [2015] FWCFB 287, the delay is the period commencing immediately after that time until midnight on 22 March 2022 although circumstances arising prior to that delay may be relevant to the reason for the delay.
As stated by the Full Bench at paragraph 39 of its decision in Stogiannidis, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.
As the Full Bench went on to say at paragraph 40, an applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.
The Applicant indicated in her Form F2 application that the application was not being lodged within 21-days of her dismissal taking effect and submitted that the delay was for the following reasons:
· She mistakenly posted a Form F10 Application titled “Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure” on 15 March 2022 (6 days within the statutory time limit for the filing of an unfair dismissal application), which was the result of a simple administrative error and not intentional.
· She posted her F10 application to the South Australian Fair Work Commission where she is currently residing.
· At 9:22AM on 30 March 2022, she received an email from the Chambers of the Regional Coordinator of the Fair Work Commission in Victoria advising that she had made an incorrect application and would need to apply for an unfair dismissal application using a Form F2.
· That the observance of the Sabbath from 6:56PM on Friday 1 April 2022 to 7:51PM on Saturday 2 April 2022 prevented her from performing any work on her computer or writing. Preparing for the Sabbath also involved various tasks and errands on Friday 1 April 2022.
· The unfair dismissal application was filed by email at 7:53PM on 4 April 2022.
In relation to the reason for the delay, the Respondent submitted that the above reasons do not constitute exceptional circumstances that warrant the granting of an extension of time.
Having considered the evidence, I find that the reason for the delay was the Applicant’s ignorance as to the requirements for lodging an unfair dismissal application.
Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. I consider this to be a neutral factor.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 4 April 2022. I consider this to be a neutral factor.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
The Respondent submits that it would suffer prejudice if an extension of time were granted as further delays would generate further administrative costs and impact the Respondent’s ability to defend the action due to employee retirement and loss of corporate memory.
Further, the Respondent contends that the mere absence of prejudice is an insufficient basis for the granting of an extension of time.
The Applicant did not make any submissions regarding the question of prejudice.
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I note that the mere absence of prejudice is not itself a factor that weighs in favour of granting an extension of time and accordingly, I regard this factor as a neutral consideration.
I will now turn to the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter” in an application for an extension of time. Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.
With respect to merits, the application broadly concerns the Applicant’s decision not to disclose her vaccination status to her employer as required by the Victorian Government’s COVID-19 vaccination requirements for authorised workers. The Respondent contends that the application is without merit and that Respondent had valid reason to dismiss the Applicant. Further, the Respondent posits that the Applicant was unable to perform the inherent requirements of her role due to her refusal to disclose her vaccination status. With respect to merits, I note the following background of the dismissal:
· The Secretary of the Department advised all employees of the Respondent that there was a requirement of all employees to comply with the Victorian COVIID-19 vaccination requirements which required authorised employees to receive a first dose of the vaccine by 15 October 2021 and to receive a second dose by 26 November 2021. A reminder was also sent to employees on 20 October 2021 regarding the requirement to be vaccinated.
· The Respondent also wrote to the Applicant on 17 November 2021 advising her that although she was on leave, she should “be aware that you will need to be compliant with the policy prior to your return to work. If you return from leave non-compliant with the policy, you will not be able to return to work and noncompliance with the policy may impact upon your continued employment with the department.”[1]
· The Respondent sent a show cause letter to the Applicant on 15 December 2021 advising her that the Department had no record that she had received the required vaccine doses and accordingly she was unable to undertake her role and on this basis the respondent was “considering terminating [her] employment.” The Applicant was given the opportunity provide a response to the letter within 14 days and could also request a face-to-face meeting with the Respondent, via Microsoft Teams, within 14 days of the letter. The Applicant did not take up the offer for a face-to-face meeting.
· The Applicant requested and was granted until 4 January 2022 to respond to the concerns letter. The Applicant responded to the concerns letter via email on 4 January 2022.
· The Respondent terminated the Applicant’s employment via a letter dated 28 February 2022. The reason for termination provided was as follows:
“For the reasons outlined in this letter and the attachment I have determined that based on your inability to lawfully perform the inherent requirements of your role your employment will be terminated with effect from the date of this letter.”
I note that at the hearing of the matter, the Applicant disputed receiving some of the correspondence above including the letter of 17 November 2021. Further, the Applicant disputes the above process was fair and contends, in her correspondence of 4 January 2022, that the Respondent could have allowed her to continue in her role if the Respondent allowed her to work remotely and had allowed her to “check daily [her] Covid symptoms status and if required complete a simple Rapid Antigen Test.” She also states in that correspondence that she believes the requirement to prove her vaccination status to her employer was “unconstitutional and discriminatory.” As to the purported reason for dismissal, the Applicant contended in her Form F2 Applicant that:
“In summary, the termination is not due to deficiencies in my performance, it is for ‘failing’ to comply with a “condition of employment” that is not contained in the Award, and is therefore not a condition of my employment.”
There is an evidentiary contest between the parties and in the absence of a hearing, it is not possible to make any firm assessment as to this matter. I observe that on the basis of the material before me, a finding that the Applicant’s employment was terminated other than for reasons related to the Applicant’s inability to perform the inherent requirements of her role is not readily apparent.
On the material before me, my preliminary assessment is that the merits weigh slightly
against the granting of an extension of time.
I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position
The Applicant did not raise any relevant issues regarding fairness.
The Respondent contends that the Applicant was treated fairly during the termination process and submitted that:
“The department has terminated the employment of a significant number of staff for reasons identical to that of the Applicant, being that the person as an ‘authorised worker’ is unable to perform the inherent requirements of their role due to non-compliance with the vaccination Directions.”
In all the circumstances and on the materials provided, I consider the issue of fairness neutral in this matter.
I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings
As set out by the Full Bench at paragraph 13 in the decision of Nulty, 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. 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.
The Applicant posits that the delay was occasioned by the filing of an incorrect application form and that upon becoming aware of that error, she took steps to file the appropriate application. When asked to explain the steps she took to inform herself of the unfair dismissal making process, the Applicant states that she spoke with a friend following her termination, accessed the Fair Work Commission website and telephoned the Fair Work Commission a couple of times. She also states at the hearing that although she is usually competent in finding her way around websites “maybe she wasn’t thinking straight because it was very stressful at the time of termination.”
Whilst I have sympathy with the Applicant who has no doubt suffered stress from the termination of her employment, this of itself is not an acceptable or reasonable explanation for the delay. Further, the fact that the Applicant initially filed the wrong application merely reflects her ignorance of the relevant law. This is not an acceptable reason for the delay.
Although the Applicant has not specifically raised the issue of postal delay as a factor for the late lodgment of the unfair dismissal application, I nonetheless make the following observations and note the postal delay between the posting of the F10 application on 15 March 2022 and its receipt by the Melbourne registry of the Commission on Monday 28 March 2022. I observe that the F10 application was posted by express post, some 4 business days before the expiration 21-day time limit for the filing of the Applicant’s unfair dismissal application. As the Australia Post guidelines indicate, express post packages are expected to be delivered within three business days, but given COVID-19, “delivery delays may be experienced” and that “Next-business-day guarantee is currently suspended.” In those circumstances, the Applicant did not allow for the real possibility of postal delays or other factors which could have slowed down the delivery of the application that she thought was a valid unfair dismissal application.
I note that the procedure for lodging an unfair dismissal application is a process which involves completion of a very simple form in any one of a variety of very simple ways. The rules of the Commission allow an unfair dismissal application to be lodged in a number of different ways, including by email, and also by telephone (see rule 9 of the Fair Work Commission Rules). That the Applicant subsequently submitted the correct application form via email indicates that this option was available to her when she filed the original F10 application.
I also observe that following the 30 March 2022 advice sent to the Applicant from the Chambers of the Regional Coordinator indicating that she had lodged the incorrect application, the Applicant lodged the correct form some 3 business days later. I accept that the Applicant’s observance of the Sabbath commenced at 6:56PM on Friday 1 April 2022 and ended at 7:51PM on Saturday 2 April 2022 prevented her from taking any steps to lodge her application in this period.
Having regard to all the matters I am required to take into account regarding section 394(3), I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application and given my findings above, I do not consider that submitting the incorrect form warrants an extension of time. The merits weigh slightly against the granting of an extension of time, the other factors are neutral. In my view, the circumstances of this case are not exceptional, either individually or when accepted together.
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
Ms Nicola Morris (the Applicant)
Mr G Rogers (for the Applicant)
Mr P Clarke (for the Respondent)
Hearing details:
10:00AM Thursday 5 May 2022 by Microsoft Teams.
[1] Respondent submissions, document 2, 11 November 2021.
Printed by authority of the Commonwealth Government Printer
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