Scanlan v Aged Care and Housing Group Inc
[2022] FWC 174
•28 JANUARY 2022
[2022] FWC 174
The attached document replaces the document previously issued with the above code on 28 January 2022
Citation amended at footnote 12.
Associate to Deputy President Anderson
Dated 31 January 2022
| [2022] FWC 174 [Note: An appeal pursuant to s.604 (C2022/1129) was lodged against this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Stephanie Anne Scanlan
v
Aged Care and Housing Group Inc
(U2022/284)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 JANUARY 2022 |
Application for an unfair dismissal remedy – extension of time – stress following dismissal – discretionary considerations – no exceptional circumstances – application dismissed
On 4 January 2022 Stephanie Scanlan (Ms Scanlan or the applicant) lodged an unfair dismissal application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to an alleged termination of employment by Aged Care and Housing Group Incorporated (ACH or the employer) on 30 November 2021.
Ms Scanlan’s application was made thirty-five days after the alleged dismissal took effect, being fourteen days beyond the 21-day statutory time-limit. For the application to proceed, and should Ms Scanlan have been dismissed, it requires an extension of time. Ms Scanlan seeks that extension.
This decision deals with whether an extension should be granted.
I issued directions on 11 January 2022.
On 18 January 2022 Ms Scanlan filed brief additional materials and on 19 January 2022 Ms Scanlan sought to amend her application.
ACH filed a response on 17 January 2022 and submissions on 21 January 2022. ACH contend that the application should be dismissed because it is out of time, and because (in its view) Ms Scanlan was not dismissed, and because the dismissal (if any) was not unfair.
I heard the extension of time matter by video on 25 January 2022.
Ms Scanlan was self-represented, as was ACH.
Ms Scanlan gave evidence and both parties made oral submissions.
Following the hearing I reserved my decision.
Facts
I make the following findings.
ACH provides aged care services including in Adelaide, South Australia.
Ms Scanlan lives in Adelaide. Until allegedly dismissed, she was employed by ACH as a community support worker. She was a casual employee. She had worked for ACH for over twelve years.
In October and November 2021 a dispute arose between Ms Scanlan and ACH concerning a COVID-19 vaccination mandate for staff working in the aged care sector following a direction by the State Co-ordinator for South Australia under the Emergency Management Act 2004 (SA).
Ms Scanlan elected not to be vaccinated.
By letter sent on 29 October 2021, Ms Scanlan advised ACH that she did not intend to be vaccinated as she did “not wish to participate in a human drug trial with unknown outcomes”.[1] She advised ACH that:
“it is unlawful to terminate my employment under these conditions”.
On 2 November 2021 ACH wrote to Ms Scanlan confirming its vaccination requirement.[2]
On 22 November 2021 ACH again wrote to Ms Scanlan advising that it had received no evidence from her of vaccination and that should this remain the case “you will be removed from the Home Care schedule as at close of business 29 November 2021”. ACH went on to advise that “if you provide evidence of a COVID vaccination by 28 February 2022 that meets the requirements of the [Direction] you will be returned to the Home Care roster.”[3]
The following day, 23 November 2021 Ms Scanlan wrote a letter to ACH titled “Official NOTICE of INDUSTRIAL DISPUTE”[4]. Ms Scanlan advised that:
in light of her Notice, the Direction “would no longer be applicable to me or my workplace”;
made a demand on the employer for “an acceptable and unconditional Whole of Life Assurance and Insurance Policy…pre-paid for the next 60 yrs (sic) and with a lifetime benefit to me of no less than $60 million…”; and
made a demand on the employer to “provide me with a legally considered response no later than 7 (seven) days from today, failing which I will - without further Notice – consider all and any lawful position, including the commencement of legal proceedings…”. (emphasis in original)
A week later, on 30 November 2021, not having received from Ms Scanlan evidence of vaccination by its stated deadline, ACH wrote to Ms Scanlan advising that “ACH Group is unable to roster you to work without the required evidence of COVID-19 vaccination” and that “as a casual worker you would be removed from the roster until such time as the required evidence was provided”.[5]
Ms Scanlan received this letter by post in the days that followed 30 November 2021. It came as no surprise to her given the earlier correspondence with ACH.
Ms Scanlan’s last rostered shift was on 29 November 2021. She was not rostered from 30 November 2021. She has not been vaccinated and maintains the view that the vaccination requirement is unlawful, is unreasonable and a breach of her contract of employment.
Ms Scanlan lodged an unfair dismissal application on 4 January 2022.
The Commission’s directions of 11 January 2022 informed Ms Scanlan that her application appeared to be out of time and required an extension of time.
Consideration
Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d)prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
If out of time, Ms Scanlan’s application can only proceed if she can establish that “exceptional circumstances” exist within the meaning of section 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[7] A decision whether to extend time under section 394(3) involves the exercise of a discretion.[8]
I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[13] 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.”[9]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
Status of the application
At the hearing I granted permission for Ms Scanlan to amend her application in the manner sought to plead (at 1.3 of her R2) that she had been constructively dismissed, and to plead (at 1.5) that she was filing within time. I did so on the express basis that it was the Commission, not an applicant or respondent, that determines if an extension of time is required and if required, whether it should be granted.
Ms Scanlan’s amended application claims that she was “constructively dismissed”. This appears to be a contention made in response to the employer’s claim that she was not dismissed.
Ms Scanlan submits that because she was “constructively dismissed” and remains ‘on the books’ that her application is no longer out of time as the date of dismissal is now said by her to be “unclear”.
I need not deal with whether Ms Scanlan was constructively or otherwise dismissed to dispose of this submission. The application before the Commission is the application filed by Ms Scanlan on 4 January 2022 as amended. Whatever its particulars, it remains a late application. Both the application as filed and now as amended rely on ACH’s letter of 30 November 2021 and the fact that Ms Scanlan has not been rostered since to allege (on her case) that she was dismissed (whether constructively or otherwise).
Confusingly, in order to rebut the employer’s submission that an extension of time is needed, Ms Scanlan suggested at the hearing that she was not dismissed at all (and that consequently her application is not late).
If Ms Scanlan was not dismissed, she has no basis to file an unfair dismissal claim and her application would be dismissed on jurisdictional grounds.
Given the confused and inconsistent positions advanced by Ms Scanlan (and making allowance for the fact that she is self-represented), and whilst noting but not determining the employer’s jurisdictional objection that no dismissal occurred, I deal with the extension of time issue should it be the case that Ms Scanlan was dismissed within the meaning of the FW Act.
The 21-day statutory period after the alleged dismissal (or “constructive dismissal”) on 30 November 2021 expired on 21 December 2021. Having filed her application on 4 January 2022, Ms Scanlan’s application is fourteen days out of time.
I now consider each of the factors in section 394(3).
Reason for the delay (section 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.[12]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[13] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.[14]
Ms Scanlan’s explanations for the delay are twofold:
she was “under duress”[15]; and
she was “learning of my rights”[16] and “considering my options”[17].
Neither explanation individually or in combination is an acceptable or reasonable explanation for the delay.
The duress referred to by Ms Scanlan appears to be stress and anxiety once she was no longer rostered. In her evidence Ms Scanlan said that whilst not surprised by the letter of 30 November 2021 it was still a shock not to be working and receiving no income.
A dismissed employee experiencing stress and anxiety after dismissal and earning no income is common, not unusual. Without more, it is not an exceptional circumstance.[18] In the case of Ms Scanlan, the stress and absence of income was entirely foreseeable given the written communication from both sides in the preceding month. No longer being rostered after 29 November 2021 due to not being vaccinated was not suddenly sprung on her. In evidence Ms Scanlan acknowledged:[19]
“I was given plenty of warning, I agree with that.”
When asked at the hearing what she did between 30 November 2021 and the date Ms Scanlan says she took advice on 28 December 2021 (see below) Ms Scanlan, after a lengthy pause, could not answer that question other than adding that she was under duress.
No evidence was led of the duress let alone its impact on her capacity to litigate alleged rights.
Ms Scanlan’s explanation that she was “learning of my rights” and “considering my options” appears to be a reference to advice she received on 28 December 2021 and 18 January 2022. Whilst claiming this to be “legal advice”, Ms Scanlan explained that it was advice from an informal group of like-minded persons in a similar position called ‘Terra-australis’.
Ms Scanlan’s evidence was that following discussion within this group on 28 December 2021, she went to the local library “a couple of days later”, downloaded the unfair dismissal form, and (avoiding public holidays) populated the application and lodged it on-line a week later.
This is no acceptable explanation for the delay. Whether it was legal or lay advice or simply information received from a chat group, it came after the statutory deadline had expired. A further week was taken before filing. More materially even, the claim of delay occasioned by waiting for legal advice until 28 December 2021 rings hollow given the content and tone of Ms Scanlan’s letter to ACH a month earlier on 23 November 2021 when it was Ms Scanlan who made claims that the employer’s position was unlawful and who used that letter to foreshadow legal action on her part.
More credible is the evidence and submissions where Ms Scanlan conceded:
“I didn’t prioritise my fair work claim”[20]; and
“I was given significant time to make a claim”[21].
These concessions, properly made, reflect the evidence and are findings readily made.
The explanations for delay do not weigh towards an exceptional circumstance.
Awareness of the dismissal taking effect (section 394(3)(b))
Ms Scanlan was aware from the end of her shift on 29 November 2021 that, whilst she would remain ‘on the books’ until 28 February 2022, she would not be rostered for further shifts without evidence of vaccination.
To the extent this was a dismissal (or constructive dismissal as alleged), Ms Scanlan was aware that the employer’s decision took effect from 30 November 2021.
Ms Scanlan was also in no doubt as to the stated reason for not being rostered.
That Ms Scanlan was well aware of the alleged dismissal taking effect and its reason makes this a neutral consideration and does not weigh in favour of an extension of time.
Action taken to dispute dismissal (section 394(3)(c))
Ms Scanlan disagreed with the vaccination mandate and prior to the alleged dismissal the employer was on notice of the views held by Ms Scanlan. A week prior, Ms Scanlan had foreshadowed legal action amongst other demands.
Although Ms Scanlan did not correspond further with the employer post-dismissal and before lodging her application, the grounds of her application ought not have been a surprise to ACH.
This is a neutral consideration.
Prejudice to the employer (section 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[22]
ACH submit that it would incur prejudice including by having to defend a late claim in circumstances where the aged care sector is experiencing challenging times where residential homes operated by ACH have come under extreme pressure due to labour shortages, the advent of the omicron variant of COVID-19 in some facilities, and the challenge of safely meeting the needs of staff, vulnerable residents and their families.
A claim would have to be responded to, involving time and cost. That prejudice, whilst real, is not unique. Somewhat out of the ordinary in this matter is the particular prejudice to ACH as a residential and community aged operator in circumstances where defending a late claim is likely to divert already stretched resources from meeting needs of staff and vulnerable persons in an already challenging regulatory and care environment arising from labour shortages and the spread of the omicron variant.
However, whilst submissions to this effect are plausible, evidence was not led. Absent evidence, I need not give weight to this consideration in determining this matter.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[23]
This is a neutral consideration.
Merits of the application (section 394(3)(e))
A hearing on merit would only arise if the second of ACH’s preliminary objections to the application, that Ms Scanlan was not dismissed, is rejected.
Without having determined the dismissal question, and notwithstanding apparent confusion in Ms Scanlan’s position, a provisional consideration of the evidence and submissions suggest that there may be some force in the employer’s claim of no dismissal. This is because the unfair dismissal jurisdiction concerns itself with the ending of an employment relationship, rather than termination of specific contracts of employment. However, not having dealt in a material way with this question, I consider it neutral for current purposes. It is open for Ms Scanlan to assert that she was a “regular casual employee” within the meaning of the FW Act, and dismissed on the employer’s initiative.
If Ms Scanlan was dismissed, a merits hearing will necessarily concern whether ACH issued a direction that was lawful and reasonable, and whether in refusing to be vaccinated against COVID-19 Ms Scanlan acted in a manner inconsistent with her duties as an employee and whether the employer acted in breach of its obligations.
As I have not heard evidence or submissions on these questions, for the purposes of considering this extension of time request, I consider the merits of the application, whilst presenting a number of challenges to the applicant, to be generally a neutral consideration.
Fairness between persons in similar position (section 394(f))
No evidence or submissions from Ms Scanlan or ACH raise issues of fairness with and between other persons.
In these circumstances, this is not a relevant factor.
Conclusion
No factors weigh in favour of granting an extension of time.
The period of delay being fourteen days, in the context of a statutory twenty-one day time frame, is not insignificant.
The explanations for delay individually and in combination are not acceptable or reasonable. Despite making demands and threatening legal action one week prior to being taken off the work roster, Ms Scanlan took no action to advance her interests or assert her rights in the month that followed. She gave her alleged rights no particular priority.
If it were the case that Ms Scanlan had been dismissed within the meaning of the FW Act on 30 November 2021, I conclude that there are no exceptional circumstances warranting an extension of time to file this unfair dismissal application.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Ms Scanlan’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[24] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
S Scanlan, on her own behalf.
J Moore and L Niutta, for and on behalf of Aged Care and Housing Group Inc.
Hearing details:
2022
Adelaide (by video)
25 January
[1] A1
[2] A2
[3] A3
[4] A4
[5] A5
[6] Smith v Canning Division of General Practice[2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[10] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[14] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[15] Email Submission 18 January 2022 4.47pm
[16] Email Submission 18 January 2022 4.47pm
[17] F2 4 January 2022 at 1.5
[18] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [62]
[19] Audio 10.55am (ACDT)
[20] Audio 10.34am ACDT
[21] Audio 10.56am ACDT
[22] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[23] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[24] PR737791
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