Rebecca Warburton v GlaxoSmithKline
[2022] FWC 971
•27 APRIL 2022
| [2022] FWC 971 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rebecca Warburton
v
GlaxoSmithKline
(U2022/2434)
| COMMISSIONER CIRKOVIC | MELBOURNE, 27 APRIL 2022 |
Unfair dismissal application filed out of time –circumstances not exceptional – application dismissed
Ms Rebecca Warburton, 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 GlaxoSmithKline 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 27 April 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 9 December 2021 and the application was made on 25 February 2022, some 78 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, which is published at [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 31 December 2021. 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 25 February 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 submitted that the “sole reason” for the delay was that her union delegate at the time informed her that she “was unable to apply for unfair dismissal whilst [she] had a pending application for a Work Cover claim.”
In relation to the reason for the delay, the Respondent submitted that there are no exceptional circumstances that warrant the granting of an extension of time in this matter and that even if exceptional circumstances are found, all of the circumstances do not support the exercise of the Commission’s discretion to extend the time for filing the application. With respect to representative error being the reason for the delay, the Respondent submitted that since the Applicant was terminated on 9 December 2021, and she was notified of her unsuccessful Workcover claim application on 16 December 2021, the Applicant still had the remainder of the 21-day statutory period to lodge her unfair dismissal claim.
I find that the reason for that delay is as stated by the Applicant, she was relying on her union to delegate informing her that she was unable to apply for unfair dismissal while she had a pending application for a work cover claim.
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.
The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal
The Applicant states she took action to dispute the dismissal from the date she was dismissed. The Respondent states that the Applicant took no action to dispute the dismissal prior to the filing of the unfair dismissal application. The Applicant’s contention appears to conflate the making of a Workcover claim and the processing of that claim with issue of disputing her dismissal. On the material before me and further, given my findings later in this decision[1], I consider that the Applicant took limited action to dispute the dismissal. I regard this factor as a neutral consideration.
I must now consider the prejudice to the employer (including prejudice caused by the delay)
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be 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.
With respect to merits, the Applicant submitted, in the document titled “Annexure A” to her Form F2, that the reason for her dismissal was her non-compliance with the Respondent’s vaccination requirements and contends that if the Respondent had addressed her situation appropriately, then the vaccine mandate would not have applied to her. Further the Applicant contends that the Respondent terminated her employment due to a temporary absence due to injury or illness which rendered her unable to work and terminated her while her Workcover claim was pending. The Respondent submits that as a manufacturing worker, the Applicant was required by the State Government’s COVID-19 vaccination requirements for authorised workers to have had her first dose of vaccine by 15 October 2021 and her second dose by 26 November 2021 and that the Applicant was terminated because she “ultimately chose not to be vaccinated and did not provide a valid medical exemption.”
Having examined the materials, it is evident to me that the parties are in dispute about the nature and process by which the Applicant’s employment was terminated. The Applicant contends that the Respondent terminated her employment for reasons of her temporary absence from work due to illness or injury, and further, that the Respondent ought to have adjusted her work situation to accommodate her injury in which case the vaccine requirements would not have applied to her. The Respondent denies the Applicant’s assertions and states that it terminated the Applicant’s employment because she chose not to be vaccinated and did not present a valid medical exemption. 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 failure to comply with the Respondent’s direction to provide evidence of vaccination or a medical exemption is not readily apparent.
In coming to this assessment, I have considered the following:
· That the Applicant was first advised on 8 October 2021 that it was a requirement for all employees of the Respondent to receive two doses of the COVID-19 vaccine by 26 November 2021 unless a valid medical exemption was provided. I also note the various correspondence between the Applicant and employees of the Respondent regarding the Applicant’s ongoing resistance to receiving the vaccine.
· That one day after lodging her Workcover claim on 15 November 2021, the Respondent indicated to the Applicant in a phone meeting that if she did not provide evidence of COVID-19 vaccination, the Respondent would have to consider the viability of her ongoing employment. Further, the Applicant sent an email to the Respondent on 17 November 2021 in which Applicant stated that:
“I just don’t feel like the vaccination has been vetted enough for me to have it at this moment, given it is still in a clinical trial phase. Once the trial is over, I will certainly be in queue to receive it.”
· That following that correspondence, the Respondent advised the Applicant that her matter would now be considered by the Respondent’s Vaccine Disciplinary Committee. On 6 December 2021 the Applicant was invited to a show cause meeting and asked to bring a support person as she had not provided evidence of vaccination or a medical exemption.
· That, on 8 December 2021, a show cause meeting was held by phone where Applicant “was provided the option of an additional 48 hour window to provide any additional information or mitigating factors” before the Respondent made any decision about her employment. The Applicant provided no further information.
· That at the end of the show cause meeting, the Applicant was informed that her employment would be terminated, and a letter was sent to the Applicant confirming this on 9 December 2021.
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 raised the issue of fairness as between the Applicant and other persons in a similar position.
The Applicant submitted that the Commission should take into consideration fairness as between the Applicant and a fellow employee who was subject to the same vaccine related issues as she was but was not dismissed by the Respondent.
With respect the employee mentioned, the Respondent submitted that:
“GSK acknowledges that another manufacturing employee at the GSK Boronia site who has not complied with the Direction or the GSK Employee Vaccination Policy submitted a WorkCover claim around the same time as Ms Warburton. However the other employee’s WorkCover claim was accepted and they had provided medical evidence they were unfit to perform any work.”
There is insufficient material before me to make a finding as to the matter raised by the Applicant involving another employee of the Respondent. 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 contends the sole reason for the delay in filing her application was that her union delegate, Mr Terry, advised her on 9 December 2021 during a phone conversation, that she could not file an unfair dismissal application while she had a pending Workcover claim.
There is a contest between the Applicant and Mr Terry as to this aspect of the discussions between them. For completeness I note that Mr Terry gave evidence before the Commission following a summons for him to attend the Commission to give evidence. During the course of giving evidence, Mr Terry expressed his discomfort at having to give evidence in this matter and stated “I must say I don’t like doing this”. That said, I have no reason to doubt the credibility of his evidence.
As to the Applicant’s assertion that Mr Terry advised her that she was unable to make an unfair dismissal application whilst her Workcover claim was “pending”, I prefer the evidence of Mr Terry for the following reasons:
· He has over 20 years’ experience as a union delegate at the Respondent’s Boronia site and provides advice to employees on a range of employment related issues “if they come to me”;
· Whilst he has not had many employees approach him regarding unfair dismissal applications, it is his clear understanding that you can make an unfair dismissal application at the same time as having an existing Workcover claim;
· He gave unequivocal evidence both in his written statement and during the hearing that he advised the Applicant that her prospects of success in an unfair dismissal application would not be good and stated “my personal view was I didn’t think the chance was great.”
· That if the Applicant wanted to pursue an unfair dismissal application, it was up to her and that she would need to seek the advice of the Union;
· That although he did not advise the Applicant as to the 21-day time limit for the filing of an unfair dismissal application “as he was not even thinking about it” he did state that she should “seek advice from the Union”. Mr Terry also stated that “I’m not an encyclopedia … but I try to represent the best I can”; and
· That on the 16th of December 2021, when the Applicant’s Workcover claim was rejected, Mr Terry had a discussion with the Applicant about her options in pursuing a Workcover conciliation. As to the unfair dismissal application, he states he does not recall having any discussion on the impact on the unfair dismissal but he recalls stating “if you want to pursue it by all means pursue it but I don’t think it will be successful … it’s pretty much black and white.”
The Applicant gave evidence as to the rejection of her Workcover claim on 16 December 2021 and when asked, during the hearing, why she did not lodge her unfair dismissal application at that time she stated:
“Because at that time, after speaking to Mick Terry, my main concern was I needed to get my work cover approved before/prior to filing any unfair dismissal cases.”
I also observe that the Applicant’s Workcover claim was accepted on 9 February 2022 and when asked why the Applicant waited some 14 days following that date to lodge her application, she states that:
· she found out then that there was a 21-day time limit for making an unfair dismissal application by looking at the Fair Work Commission website;
· she was looking at getting a lawyer but could not attain one for financial reasons;
· she became aware that she could make the unfair dismissal application online; and
· she was “taking actions towards having [her] claim heard, so this was all part of the journey I took in the effort to dispute my dismissal.”
In cases involving representative error, the conduct of the Applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. In the circumstances before me, for the reasons referred to earlier in my decision, I am not persuaded that the Applicant is blameless for the late lodging of her application. For the reasons stated above, I prefer the evidence of Mr Terry to that of the Applicant, as to the Applicant’s assertion that Mr Terry advised her that she could not make an unfair dismissal application whilst her Workcover application was pending. For completeness I observe that even if I were to accept that the Applicant was under the misapprehension that her unfair dismissal application could not be made whilst her Workcover application was “pending”, there is no credible explanation provided by the Applicant as to why she did not file her application electronically when she was informed that her Workcover application was approved on 9 February 2022. I note that the procedure for lodging an unfair dismissal application involves completion of a very simple form in any one of a variety of very simple ways.
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 representative error was a contributing factor. 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 Rebecca Warburton (the Applicant)
MinterEllison (for the Respondent)
Hearing details:
10:00AM Wednesday 27 April 2022 by telephone.
[1] See paragraph [32].
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