Sean Heron v McKenzie Aged Care Group Pty Ltd

[2021] FWC 6707

[2021] FWC 6707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Heron
v
McKenzie Aged Care Group Pty Ltd
(U2021/9951)

COMMISSIONER P RYAN SYDNEY, 31 DECEMBER 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Mr Sean Heron (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) lodged on 5 November 2021 (Application).

[2] In the Application, the Applicant states that his employment with McKenzie Aged Care Group Pty Ltd (Respondent) was terminated with effect from 17 September 2021.

[3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). By the dates set out in the Application, the period of 21 days ended at midnight on 8 October 2021. The Application was therefore filed 28 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3).

[4] The Respondent opposes this request and disputes the date of termination. The Respondent submits the date the dismissal took effect was 16 September 2021.

[5] In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time. The materials filed by the parties were consolidated by my chambers into a Digital Hearing Book (DHB).

[6] The matter was heard as a determinative conference via Microsoft Teams on 17 December 2021. The Applicant represented himself. The Respondent was represented by Ms Olivia Kofoed, the Respondent’s group manager of employee relations.

[7] For the reasons that follow, I decline to grant an extension of time under s.394(3).

When did the dismissal take effect?

[8] The parties are in dispute about when the dismissal took effect. The Applicant contends the dismissal took effect on 17 September 2021, while the Respondent contends the dismissal took effect on 16 September 2021.

[9] It is not in dispute that on 16 September 2021, the Respondent sent the Applicant a letter of termination by email to the Applicant’s usual email address and that was received by the Applicant’s email account at 3.35pm.

[10] Relevant to the date of effect of the dismissal, the letter of termination unambiguously states “The termination of your employment is effective as at 16 September 2021.” 1

[11] In the Application lodged on 5 November 2021, the Applicant confirmed he was notified of his dismissal on 16 September 2021. 2

[12] However, during the proceedings before me, the Applicant initially stated that he didn’t see the email until later that evening, and then later stated that he did not see the email until later that evening or possibly not until after midnight. The Applicant submitted the effect of this was that the dismissal took effect from 17 September 2021.

[13] While I find the Applicant’s initial response in the Application to be highly persuasive as to when he read the email, even if he did not read it until after midnight, it would not change the date the dismissal took effect. In Ayub v NSW Trains [2016] FWCFB 5500, a Full Bench of the Commission held:

“[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”

[14] Accordingly, I find the date the dismissal took effect was 16 September 2021.

[15] This means the Application was filed 50 days after the date the dismissal took effect, and 29 days outside the 21 day period.

Exceptional Circumstances

[16] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, 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. 3 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.4

[17] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[18] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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;

(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 similar position.

[19] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

[20] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application. 5

[21] I now consider these matters in the context of the application.

Reason for the delay

[22] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, however all of the circumstances must be considered. 6

[23] In the Application, the Applicant provided the following reason for the delay:

“Upon my dismissal, I intended to dispute via fairwork commission and through the process, I encountered published information on the fairwork.gov.ay [sic] website about COVID-19 vaccinations and the workplace. At the time of reading this, the publication was made me believe I have no recourse of action to dispute my employer standing me down. In addition, there are other numerous government websites that also claim that employees have no rights. After some consideration, I now believe I should not have been terminated.” 7

[24] By email dated 25 November 2021, the Applicant filed a further submission setting out two reasons for the late filing of the Application:

(i) A ‘rare incident’ involving stolen silver bars; and

(ii) Biased information on the ‘Fair Work’ website. 8

[25] The Applicant submitted that the combination of the above matters “caused some reluctance to apply.” 9

The Silver Bars

[26] The Applicant gave evidence that on 23 September 2021, 45 x 1 kilogram silver bars were stolen from his home. The silver bars were the property of a self managed superannuation fund (SMSF) of which the Applicant is a member. The Applicant gave evidence that he reported the matter to the police and made arrangements with the SMSF to repay the value of the silver bars. This necessitated the Applicant and the SMSF entering into a deed of settlement.

[27] The deed of settlement was executed on 16 October 2021 and required the Applicant to discharge his obligations by 23 October 2021. 10

[28] The Applicant submitted that the matters associated with the theft of the silver bars diverted his time and attention from filing the Application within the prescribed period.

Biased Information

[29] The extent of the Applicant’s submission on this point was that the following statement on the ‘Fair Work’ website, misled him:

“An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of a specific law.” 11

Consideration - Reason for the delay

[30] I do not accept the Applicant’s submissions concerning the information on the ‘Fair Work’ website is an acceptable or reasonable explanation for the delay. The quote set out at paragraph [29] above is not an incorrect or misleading statement.

[31] In relation to the incident involving the stolen silver bars, while I accept the incident involves very unique factual circumstances, it was an incidence of theft. It was reported to police and required the Applicant to attend to some additional administrative arrangements. I do not accept the impact of those arrangements were such that it prevented the Applicant from lodging the Application within the prescribed period.

[32] Furthermore, the deed of settlement clearly sets out those arrangements were required to have been completed by 23 October 2021. The Applicant has not provided any explanation for the period thereafter until the Application was filed on 5 November 2021 other than he was giving the matter “some consideration” 12 and a combination of the Applicant’s reasons caused “reluctance to apply.”13

[33] Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[34] For the reasons set out at paragraphs [8]-[15] above, I find the Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Action taken to dispute the dismissal

[35] It is not in dispute, and I so find, that the Applicant did not take any action (following his dismissal) to dispute the dismissal prior to making the Application on 5 November 2021. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[36] In its Form F3 Employer Response, the Respondent submits that it would suffer prejudice if an extension of time were granted. Specifically, the Respondent submits that if an extension of time were granted, it would suffer prejudice from the time and costs associated with defending the Application. 14

[37] 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.

Merits of the application

[38] The FW Act requires me to take into account the merits of the Application in considering whether to extend time. It is not in dispute that the Applicant was employed in a residential aged care facility in Queensland and that the Respondent terminated the Applicant’s employment because he did not comply with the mandatory COVID-19 vaccination requirements for a residential aged care worker in Queensland. 15

[39] The COVID-19 vaccination requirement (in force at the time of the Applicant’s dismissal) was set out in the Residential Aged Care Direction (No.7) issued by the Chief Health Officer under s.362B of the Public Health Act 2005. The direction required a residential aged care worker to have received at least one dose of a COVID-19 vaccine approved by the Therapeutic Goods Administration for use in Australia by 16 September 2021. 16 If a residential aged care worker did not comply with the vaccination requirement, they were prohibited from entering, or engaging in work at, a residential aged care facility from 17 September 2021.17

[40] It is not in dispute that the Applicant did not comply with the COVID-19 vaccination requirement. Furthermore, it is not in dispute that the Applicant was aware of the requirement and that his employment may be terminated if he failed to comply with the vaccination requirement. In this respect, the Applicant gave evidence during the proceedings that he contacted the Fair Work Commission approximately 3 weeks prior to the termination of his employment to query whether the Respondent could do so.

[41] Taking into consideration all of the circumstances, I find that the merits of the Application are weak.

Fairness as between the person and other persons in a similar position

[42] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[43] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[44] An order to that effect will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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 1   DHB at page 12.

 2   DHB at page 7; Form F2 response to question 1.3.

 3   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 4   Ibid.

 5   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 7   Applicant’s response to question 1.5 in Form F2; DHB at page 7.

 8   DHB at page 14.

 9   Ibid at page 15.

 10   DHB at pages 17-20.

 11   DHB at page 15.

 12   Applicant’s response to question 1.5 in Form F2; DHB at page 7.

 13   DHB at page 15.

 14   DHB at page 26.

 15   DHB at page 12.

 16   Residential Aged Care Direction (No.7) at [29].

 17   Ibid.