Phillip Wilson v Eastern Australia Airlines Pty Limited
[2022] FWC 1791
•11 JULY 2022
| [2022] FWC 1791 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Phillip Wilson
v
Eastern Australia Airlines Pty Limited
(C2022/1738)
| COMMISSIONER YILMAZ | MELBOURNE, 11 JULY 2022 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.
On 13 March 2022, Mr Peter Wilson lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Eastern Australia Airlines Pty Limited (EAA). Mr Wilson commenced employment as a pilot on 28 April 2008 and his dismissal took effect 12 January 2022 with payment in lieu of notice. EAA dismissed Mr Wilson for failure to comply with the Qantas Group COVID-19 Vaccination Policy and he breached the Standards of Conduct Policy.
Prior to this application, Mr Wilson filed a general protections not involving dismissal application on 2 February 2022 pursuant to s.372 of the Act. The application was closed by the Commission after EAA advised it did not consent to a conference and advised that Mr Wilson was dismissed on 12 January 2022. Mr Wilson contends that the s.372 application was intended to be a general protections application involving dismissal, but due to an error, it was closed by the Commission on 11 February 2022.
On 20 September 2021, the Qantas Group published its COVID-19 Vaccination Policy which applies to all Australian based employees of Eastern Australia Airlines. The policy requires that every fully vaccinated employee provide evidence of vaccination through the internal HR system by the due compliance dates. Mr Wilson’s due compliance date was 25 November 2021, and he did not upload his evidence of compliance with vaccination.
On 26 November 2021, Mr Wilson was issued with a review of employment letter which notified him of his failure to comply with the policy - a reasonable and lawful direction, and that he had acted in breach of the Qantas Group Standards of Conduct Policy. Mr Wilson was stood down and directed to provide a response by 1 December 2021.
Mr Wilson provided two responses to the review of employment letter, and a meeting was scheduled for 13 December 2021 to discuss the responses and reasons as to why Mr Wilson’s employment should not be terminated. A follow up meeting occurred on 12 January 2022, where Mr Wilson was informed that his employment was being dismissed. A letter was sent, dated the same day, confirming the dismissal with immediate effect with payment in lieu of notice.
Mr Wilson immediately lodged an internal appeal of the decision under the Qantas internal appeal procedure. On 25 January 2022, Mr Wilson was sent a letter dismissing his internal appeal.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 39 days after the 21-day statutory time limit.
Mr Wilson was granted leave to be legally represented. Witness statements were tendered by Mr Wilson and his legal representative, Mr Robert Grealy. Ms Jessica Farah, Head of Industrial Relations- Group Litigation gave evidence for EAA.
Applicant’s submissions
Mr Wilson submits that his application lodged on 2 February 2022, was intended to be a s.365 application, therefore the matter is within the 21-day time frame. However, his solicitors used a “hybrid” application form which resulted in the Commission processing a s.372 application. He submits that his solicitors relied on an email from the Commission headed “your unlawful dismissal application” therefore considered the application validly made.
It is submitted that the application, despite its hybrid characteristics was intended to be a general protections application involving dismissal, as it contained information of the alleged contraventions, referred to Mr Wilson’s dismissal and internal appeal including the remedy sought. It is submitted that Mr Wilson provided instructions to his lawyers and was entitled to assume the form would be filed in the correct state on his behalf. Mr Wilson submits that he did what he could and after receiving an email from the Respondent on 7 February 2022, regarding the validity of his first application, he maintained contact with his solicitors to ensure that his application was rectified. Mr Wilson maintains that his application is within time, and if not, the late lodgement was due to representative error, and he should not be penalised for representative error.
On 19 February 2022, Mr Wilson’s solicitors contacted the Commission about the application and received on 1 March 2022, confirmation of what was required for Mr Wilson’s and other client applications that were lodged using the same hybrid form. It is submitted that on 2 March 2022, communication from the Commission confirmed closure of Mr Wilson’s s.372 application and a fresh application was lodged as soon as possible allowing for his solicitors’ work commitments.
Mr Wilson submits that his dismissal is a contravention of his general protections in respect of:
· s.340 Protection of workplace rights
· s.343 Coercion in relation to workplace rights
· s.346 Protection of industrial activities
· s.348 Coercion in relation to industrial activities
· s.351 Discrimination on the basis of medical condition or disability and religious conviction. It is contended that vaccination status is a medical condition or disability.
Respondent’s submissions
In addition to the witness statement of Ms Farah, EAA tendered in evidence copies of policies and correspondence with Mr Wilson relating to his non-compliance, show cause process and dismissal.
In relation to Mr Wilson’s first application, the s.372 application, Ms Farah’s witness statement referred to correspondence with the Commission, Mr Wilson and his solicitors, and attached in evidence copies of the correspondence.
A copy of the s.372 application was tendered in evidence,[1] and it shows that the email cover note from Mr Wilson’s solicitors makes reference to an attached general protections claim, without clarifying whether it is an application involving dismissal, or not involving dismissal. The completed application form is titled a form F8C- general protections application not involving dismissal, and clearly identifies s.372 of the Act. The form contains the same title in the header on each page. However, the attached three-page preamble or explanation of the form refers to a form F8 general protections application involving dismissal.
Upon receiving the application and understanding from the header that it was a general protections application not involving dismissal, EAA state that it sent to the Commission and copied in Mr Wilson and his solicitors that it did not agree to participate in a conference and advised that Mr Wilson’s employment had been terminated. The email from Ms Farah[2] states that the Applicant filed the general protections application not involving dismissal on a date after his dismissal and states that there are jurisdictional issues with the application.
EAA submit that it received correspondence from Mr Wilson’s solicitor on 10 February 2022 asserting the application was a general protections application involving dismissal and requested confirmation of its receipt. On 11 February 2022, correspondence from the Commission sent to the parties (including Mr Wilson’s solicitors) advised of closure of the s.372 application on the basis that the Respondent did not wish to participate in a conference.[3]
Further correspondence was received by Mr Wilson’s solicitors on 1 March 2022 which stated that on advice from the Commission to lodge the same application on the right form, it attached a new application dated 2 February 2022.[4] EAA submit that the attached application was not the same and it immediately sought clarification on the status of the application, given that the earlier application had been closed.[5] Mr Wilson’s solicitors were copied in, but Mr Wilson was not, as the cover email from the solicitors referred to a different EAA employee. Email correspondence from EAA to the Commission and Mr Wilson’s solicitors confirmed its understanding on receipt of information from the Commission that Mr Wilson’s application had been closed and no fresh application with the Commission had been lodged at that time.[6]
EAA submit that Mr Wilson was dismissed because he failed to comply a lawful and reasonable direction and the application for an extension of time should be rejected as the reasons given do not meet the standard of exceptional circumstances. It submits the Commission should dismiss the application.
Consideration
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e) Fairness between the person and other persons in a like position
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[7] where it was held that:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[8]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was backdated to 2 February 2022, but lodged with the Commission on 13 March 2022, 39 days late. Mr Wilson contends that the application was made within the 21-day time frame as the first application (s.372 general protections not involving dismissal) was lodged within time, but was erroneously lodged on the wrong form. The requirement to lodge a fresh application, he submits was due to representative error and he did all that was reasonably required for his application to be lodged. Mr Wilson’s evidence is that he obtained advice from his solicitors about his impending dismissal and on 24 January 2022, while aware of the 2 February 2022 deadline, he instructed them to proceed with a general protections involving dismissal application. On 2 February 2022, Mr Wilson checked his proposed application[9] before it was filed with the Commission. Mr Wilson contends that he did not notice the reference in the form to general protections not involving dismissal.[10]
As Mr Wilson’s solicitor used a hybrid form, the Commission “purportedly processed’ the general protections application involving dismissal as a general protections application not involving dismissal. Mr Wilson further relies on an email from the Commission dated 3 February 2022, which referred to receipt of the application and was headed “Your unlawful dismissal application” as confirmation that the application was valid.[11]
Mr Wilson states that he did not know that his first application was closed until 2 March 2022, and that his lawyers were resolving the matter of the hybrid form with the Commission.[12] Mr Wilson says that on 8 March 2022, he inquired with his solicitors whether his application had been resolved and was advised that he had to file a new application. He says that he instructed his solicitors to do so, and the application was lodged on 13 March 2022.[13]
Mr Wilson also appears to attribute the delay to EAA’s representative for not comprehending that the first application was a s.365 application and suggests that the Commission’s response by closing the application was due to EAA.
EAA submit that Mr Wilson’s argument that the first application was a s.365 application is not sustainable and is without merit. Correspondence from the Commission referred to s.372 of the Act and the actual form F8C was marked as a general protection application not involving dismissal. Further, the second application was not in substance the same as the first, therefore it was more than an administrative change in the form.
In respect to representative error EAA refers to McConnell v A & P M Fornataro[14] which draws a distinction between a delay due to the representative where the applicant is blameless and where the delay is attributable to the applicant together with the representative. In this matter, EAA contends that the applicant is not blameless and his own conduct contributed to the delay.
There must be a credible reason for the delay.[15] I do not agree that the first application was a s.365 application. The “hybrid” form was not the Commission’s approved form, and even so, as the title of the form, its reference to s.372 and the title in the header on each page cannot in all reasonableness be accepted as a s.365 application. I observe that while the form states in the footer that it is the Commission’s approved form, it is not, as question 1.1 is amended, a new 1.2, 1.3 and 1.4 was added to the form. Mr Wilson was entitled to rely on his lawyers to complete the approved form, but even with the indicators of the form being a general protection not involving dismissal application does not exclude from Mr Wilson any blame for the first application. Further, I do not accept that the second application was an administrative correction to the first application. One application was subject to s.372, while the current application which also contains additional information is an application pursuant to s.365 of the Act.
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.[16] While Mr Wilson is entitled to rely on his lawyers, he was also obliged to take steps to ensure his application was filed on time, and must demonstrate that the delay was not attributable to his own actions.
The first application was lodged on the death knock of the deadline, which left no room for correction or refiling the correct form. Nevertheless, while EAA made clear its position on the first application on 7 February 2022, instead of taking active steps to file a fresh application, an attempt was made to press EAA to confirm acceptance of the application as a general protection involving dismissal application.
In my view the actions of EAA were irrelevant to the delay, and the responsibility squarely falls on the applicant to file the correct application within the statutory time frame. I further do not accept that Mr Wilson’s solicitors did not receive the correspondence from the Commission that the file was closed as the email address appears in order. Mr Wilson submits he acted promptly on learning his first application was closed to file the new application but does not credibly explain the delay until 13 March 2022.
I am not satisfied that either Mr Wilson or his solicitors acted with care and promptness. I consider that the the delay by 39 days is due to the mishandling of the first and second application by the solicitors. However, given his inaction I cannot find that Mr Wilson is blameless with respect to the delay.
Having regard to Mr Wilson’s submissions, I do not accept the reasons as being exceptional, unusual, out of the ordinary, uncommon or special. I am not satisfied that he has demonstrated credible reasons regarding this consideration, and I consider the reasons given for the delay do not weigh in his favour.
Steps taken to dispute the termination
Mr Wilson submits that EAA were well aware that he would challenge his dismissal because they were informed of such, during the outcomes meeting held on 12 January 2022, and the application for internal review of the dismissal decision was filed promptly after notification of the dismissal. It is also submitted that it was disingenuous of EAA to not accept the first application as a general protections application involving dismissal because on a cursory view of the form it was obvious that it was intended as a dismissal application.
EAA submit that Mr Wilson did challenge his dismissal with the internal review, however this challenge did not contribute to the delay. The EAA does not dispute the submission that they were advised by Mr Wilson at the outcomes meeting that he would challenge the dismissal.
I do consider that EAA was on notice that a dismissal dispute was likely and for this reason I do consider this factor to weigh in Mr Wilson’s favour.
Prejudice to the employer
Mr Wilson submits that the delay had caused no prejudice to the employer, as it was already aware that he would dispute the dismissal. He further states that should there be any prejudice that it is partially caused by EAA’s disingenuous communications.[17]
The EAA does not submit that it suffered any prejudice as a result of the delay, but it should be able to rely on compliance with statutory time frames.
However, even the mere absence of prejudice is an insufficient basis to grant an extension. This consideration therefore is neutral.
Merits of the application
Mr Wilson submits that his application raises significant issues in respect to general protections and workplace rights including protection of religion or political opinion, the right to health and safety and the right to require compliance with the enterprise agreement. He submits that EAA’s policy and actions were discriminatory , and that EAA did not comply with its OHS and enterprise agreement consultation obligations. He submits that his claims are complex, novel and have not yet been given full consideration by either the Fair Work Commission or the Federal Court and therefore the merit should not be a focus in this matter, but I should accept that there is a prima facie case based on the submissions.[18]
EAA submits in reply that Mr Wilson’s case is without merit. In particular, the submissions that the dismissal was because of a medical condition, medical status and/ or disability or due to religious convictions, including the refusal for vaccination is a disability is misconceived. The other arguments concerning whether Mr Wilson engaged in protected industrial action, whether there was a breach of consultation obligations, whether the direction was lawful or reasonable including among other matters that the government’s issued health orders were unlawful or invalid are not within the scope of Part 3-1 of the Act.
I now turn to Mr Wilson’s assertion that his dismissal was indirectly discriminatory because he held a conscientious or religious objection to EAA’s vaccination policy. Apart from this assertion, Mr Wilson did not file any evidence or submissions to substantiate his religious objection to the policy. I note that an individually held religious conviction may not meet the twofold criteria established by the High Court of Australia as follows:
“… for the purposes of the law, the criteria of religion are twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, though canons of conduct which offend against the ordinary laws are outside the area of any immunity, privilege or right conferred on the grounds of religion.[19]
Mr Wilson alleges contravention of his religious conviction, however, the attribute of religion is intended to cover a lawful religious belief and not a personal belief. Given that no submissions or evidence were tendered to substantiate the claim of religious discrimination, I am unable to conclude whether Mr Wilson’s objection met the twofold criteria cited above. In the absence of any detail, I therefore conclude that religious discrimination is a neutral consideration.
Turning to the remaining considerations concerning merit, again, the absence of any detail in respect to how it is alleged that each of the protections exist and have been contravened does not assist Mr Wilson’s case. No substance to Mr Wilson’s allegations concerning ss. 340, 343, 346, 348 and 351 were provided to ascertain whether there is any causal link with the alleged protections and the dismissal. Where an applicant’s submissions on the merits lack detail, they are unlikely to favour an extension of time being granted.[20]
Vaccination status is not a protected attribute under discrimination law and Mr Wilson does not contend that he has any medical condition that prevents his vaccination. However, it appears that he suggests that not being vaccinated is a medical condition which is inconsistent with protections based on disability or scope of the attribute.
Accordingly, for the reasons set out above, together with the reasons and evidence for the dismissal tendered by EAA, I can only conclude that merit is weak, or at best, that this consideration would be considered neutral.
Fairness between the person and other persons in a like position
Mr Wilson submits that his solicitors filed 21 applications all incorrectly on “hybrid forms” and 19 of those applications were refiled and accepted. Should an extension of time not be granted for Mr Wilson, it is submitted that he would be penalised for his representative’s error and be substantially prejudiced compared to those in a like position.[21]
I note there was no evidence in relation to the alleged 19 other applicants. No evidence of their applications, whether there was any delay or the duration of the delay if applicable was tendered to establish if they and Mr Wilson were in a like situation. Consequently, I find this consideration neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of the considerations that I have decided not to grant an extension of time. The only consideration to weigh in Mr Wilson’s favour is his challenge of the dismissal, the balance of considerations either did not fall in his favour or were neutral.
Having considered to all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Mr R. Grealy for the Applicant.
Ms J. Farah for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
24 May
[1] Exhibit R1, Statement of Jessica Kate Farah, attachment JKF-8.
[2] Exhibit R1, Statement of Jessica Kate Farah, attachment JKF-9.
[3] Ibid, attachment JKF-11.
[4] Ibid, attachment JKF-12.
[5] Ibid, attachment JKF-13.
[6] Ibid, attachment JKF-14.
[7] [2011] FWAFB 975.
[8] Ibid at [13].
[9][9] Exhibit A1, statement of Phillip Wilson, attachment PW5.
[10] Ibid at [16].
[11] Exhibit A2, statement of Robert Grealy, attachment RG4
[12] Exhibit A1 at [27] – [28].
[13] Ibid at [29] – [30].
[14] McConnell v A & PM Fornataro t/a Tony’s Plumbing Service[2011] FWAFB 466, 202 IR 59 at [35].
[15] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[16] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [30].
[17] Applicant’s outline of submissions at [21]-[22].
[18] Applicant’s outline of submissions at [23] – [25].
[19] Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120, 131, 150, 173.
[20] See, eg, Day v CBI Constructions Pty Ltd [2013] FWC 5359, [19]; Fitzpatrick v Danila Dilba Health Service[2013] FWC 4565.
[21] Ibid at [26] – [27].
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