Ronald Edward Neal v Compass Group Remote Hospitality Services Pty Ltd

[2022] FWC 308

[2022] FWC 308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ronald Edward Neal
v

Compass Group Remote Hospitality Services Pty Ltd

(U2022/739)

DEPUTY PRESIDENT LAKE BRISBANE, 15 FEBRUARY 2022

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed

1. Ronald Edward Neal (the Applicant) lodged an application with the Fair Work Commission (the Commission) on 13 January 2022 for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Compass Group Remote Hospitality Services Pty Ltd (the Respondent) on 16 December 2021, which was effective immediately. The reason for his termination was his failure to comply with a direction by the Respondent that its employees were required to receive the COVID-19 vaccine. It was conceded the lodgement of the application was 27 days after the date of dismissal, being six days outside the statutory time limit prescribed by s.394(2) of the Act.

1. The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension and a hearing was held before me on 11 February 2022.

Should a further period be granted?

1. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances, taking into account:

   (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; and

   (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 like position.

1. The test of “exceptional circumstances” establishes a high barrier for an applicant.[1]  In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:

“In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.” [2]

1. Although Nulty considered the expression “exceptional circumstances” in the context of s.365 of the Act, its reasoning applies to s.394(3).

Applicant’s material

1. The Applicant submits that he should be granted an extension of time because exceptional circumstances exist in his case.   The Applicant’s evidence was that he had attended a barbecue 26 December 2021. On 29 December 2021, he was notified that one of the people in attendance at that barbecue had tested positive to COVID-19 and that he was a close contact because he had been there for more than four hours. He understood that he needed to quarantine for 14 days as he was an unvaccinated close contact.  Given one of his children is a transplant recipient and therefore immunocompromised, he had to quarantine at is elderly parents’ house in Goondiwindi, while his children and wife returned to their home. It was understandably a stressful and anxious time. In accordance with the Government’s requirements, he was RAT tested on Days 5 and 12 and received negative results.

1. Relevantly to this application, during his isolation period he says he did not have access to his computer, files or documents and was therefore unable to process his unfair dismissal application. While he accepts that he had some phone reception and a smart phone, his parents did not have a computer.  The Applicant's isolation period ended on 12 January 2022 and he immediately returned home and filed his unfair dismissal application on 13 January 2022. On that basis he asserts that he ought to be granted an extension of time because his circumstances were exceptional in that they were out of the ordinary, unusual, uncommon and beyond his control.

1. It is uncontentious that the Applicant first became aware of his dismissal on the day that it took effect. He had also been forewarned of the Respondent’s intention to dismiss him if he was not vaccinated in the Respondent’s letter dated 1 December 2021.

Respondent’s material

1. The Respondent submits that the Applicant should not be granted an extension. Further, the Respondent states that the Applicant does not advance any rationale for not contacting a third party or an external representative to lodge a basic F2 form on his behalf for the purposes of complying with the statutory time limit. Further, the Applicant has not explained why he did not lodge the application between 16 December 2021 and 29 December 2021.

1. The Respondent points to the sequence of events as demonstrating that the Applicant was well aware that his employment would be terminated on 16 December 2021 if he did not receive a COVID-19 vaccination. It could not have come as a surprise given that on 1 December 2021, the Respondent provided the Applicant with an opportunity to respond to the premise that his employment was at risk of termination for failing to comply with its direction that he be vaccinated against COVID-19. Then, on 16 December 2021, the Respondent issued a letter to the Applicant notifying him that his employment would terminate, effective immediately, and that he would receive two weeks’ pay in lieu of notice.

1. The Respondent points to Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd where the Full Bench found that a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[3] The Respondent submits that the Applicant has not provided a reason for the delay which explains or excuses the entire period of the delay and therefore this element can lend no weight to a finding that exceptional circumstances existed, which would give rise to the Commission exercising its discretion to grant an extension.

1. In respect of the other factors that I must consider under s.394(3) of the Act, the Respondent submits that:

   (a)  the Applicant became aware of his dismissal on the day it took effect;

   (b) there is no evidence in the Applicant’s material that he took any action to dispute the dismissal prior to the filing of this application late;

   (c) it would be prejudiced if the Applicant were able to continue his application because it would not be able to know with any certainty that a time limit will be enforced in future, particularly in respect of applications like the Applicant’s, which have limited prospects of success;

   (d) The Applicant's application has limited prospects of success because the Respondent issued a lawful and reasonable direction that the Applicant had to be vaccinated, the Applicant was notified of the proposed reason for the termination at least as early as 1 December 2021, was afforded an opportunity to respond during an extensive show cause process during which the Applicant engaged and the Respondent considered his responses. Notwithstanding the Applicant’s response to the show cause letter, the Respondent considered it appropriate to terminate his employment due to his non-compliance with the vaccine requirement; and

   (e) fairness between the Applicant and other persons in a similar position is in neutral consideration.

1. Consequently, the Respondent asserts that the Applicant’s reasons for delay do not constitute exceptional circumstances and do not warrant the granting of an extension of time.

Consideration

Reason for the delay (s.394(3)(a))

1. The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [6]

1. It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[7]

1. I have sympathy for the Applicant who was forced to isolate after finding out he was a close contact. He did so in circumstances where he had to stay with his elderly parents to protect his immunocompromised child.  I am sure this would have been a stressful time, no less so because he had just been dismissed. However, with respect to this application, the Applicant was aware that if he was not vaccinated, he was likely to be terminated on 16 December 2021. There were then just under two weeks between when he was formally notified of his dismissal and when he realised he had to go into isolation for 14 days. I acknowledge that this was over the Christmas period and that the Applicant's attention may have been elsewhere, but that is neither extraordinary nor exceptional. As to the period during which the Applicant was in isolation, it is clear that he had the ability to use his phone. I accept that he did not have his documentation with him and was hoping to complete the application with that in front of him, however, there was nothing stopping him from filling in the basic Form F2 on his phone and submitting his supporting documentation at a later date. Unfortunately, it is a common misconception among applicants that all documentation and evidence is required for the initial the filing of the application. I accept that after the Applicant was released from isolation, he returned home and filed the application the following day. However, I must consider the whole of the 21-day period. Based on the situation as described above, I am not satisfied that the reasons given by the Applicant to account for his late filing of the application constitute exceptional circumstances, though they are certainly unfortunate and difficult. 

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

1. The Applicant became aware of his dismissal on 16 December 2021. This consideration weighs neutrally.

Action taken to dispute the dismissal (s.394(3)(c))

1. It is uncontentious that the Applicant did not take steps to dispute the dismissal until he lodged this application. That said, it must be acknowledged that the Applicant did challenge the basis for the dismissal at an earlier stage during the show cause process. This factor weighs neutrally in respect of the grant of an extension of time.

Prejudice to the employer (s.394(3)(d))

1. The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[8] I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

1. In Kornicki v Telstra-Network Technology Group, the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” [9]

1. Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim.  While most decisions of the Commission in respect of mandatory vaccination against COVID-19 have indicated that such a direction is a lawful and reasonable one for an employer to make, I have not had the benefit of the parties’ substantive submissions in respect of this particular case. Consequently, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

1. The Commission may give consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[10]  Neither party made any specific submissions in respect of this factor, so I consider it to be neutral.

Conclusion

1. Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter.   Accordingly, it is not appropriate to grant an extension of time.  

1. Accordingly, I order that the jurisdictional objection be upheld and that the Applicant’s application be dismissed. 

DEPUTY PRESIDENT

<PR738371>

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].

[2] [2019] FWC 25.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901.

[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

[5] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

[6] [2018] FWCFB 901 [39].

[7] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[10] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].

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