Sean Murray v Karora Australia Pty Ltd
[2022] FWC 447
| [2022] FWC 447 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sean Murray
v
Karora Australia Pty Ltd
(U2022/420)
| COMMISSIONER WILLIAMS | PERTH, 1 MARCH 2022 |
Application for an unfair dismissal remedy - extension of time.
Mr Sean Murray (Mr Murray or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Karora Australia Pty Ltd (the Respondent).
Mr Murray’s application says he was notified of his dismissal on 15 December 2021 and his dismissal took effect the same day. His application was made on 6 January 2022.
The application has been made more than 21 days after the alleged dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(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.”
Consequently, on 17 January 2021 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided a written response.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
The Applicant explains the reason for the delay in making his application was that he has been suffering from stress and anxiety as a result of the dismissal. In addition, he says, he was managing the financial consequences of losing his job and has had to move house whilst also seeking new employment. He explains this all occurring over the Christmas period and his upcoming wedding added unwanted pressure and took up his time.
The Applicant also explains he was not aware of the 21-day timeframe and once he discovered this lodged his application.
Regrettably disruption to people’s accommodation and financial stress is not an uncommon consequence of unemployment and these are not exceptional circumstances. The occurrence of the festive season and other key events in a person’s life are also not exceptional circumstances.
The request for further information from the Commission about the Applicant’s exceptional circumstances explained that if he was relying on a medical condition as the reason for delay, he should supply a medical certificate or report which specifically explains why his medical condition prevented him from making her application within time.
The Applicant has not filed a medical certificate or report that supports the conclusion that his stress and anxiety prevented him from making this application within time.
Ignorance of the timeframe for lodgement is also not an exceptional circumstance.
The issues and the circumstances on which the Applicant seeks to rely together are not exceptional circumstances. The Applicant has not provided an acceptable reason for the delay in making this application.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant became aware of his dismissal on 15 December 2021 which was the day it took effect.
Action taken to dispute dismissal
The Applicant did not take other action to dispute his dismissal.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the Respondent employer.
The merits of the application
The Applicant says in his application his dismissal is unfair because he is complying with the government’s vaccination mandate by not attempting to access the mine site and offering to work from home where he could complete at least 70% of his tasks until a suitable vaccine becomes available.
He says he offered to produce negative covid tests before entering site and has attempted to engage in discussions with the Respondent. The Applicant states he has been discriminated against based on his medical condition, status and preference.
The Respondent’s response says the Applicant’s employment ended because the Applicant elected not to comply with the government’s Resources Industry Worker (Restrictions of Access) Directions which meant the Applicant was no longer permitted to enter the mine site at which his substantive role was located.
The Respondent submits that as the Applicant was employed as a Safety Advisor, his role required that his is present on site to respond to safety related events.
The Respondent also says the Applicant was provided with adequate notice and all relevant information in order to comply with the Resources Industry Worker (Restrictions of Access) Directions and whilst it recognised an individual’s right to chose to be vaccinated or not, the Applicant’s choice not to be vaccinated meant he was not able to meet the inherent requirements of his role and so his employment was terminated. The relevant exchanges between the parties were attached to the application.
The Respondent submits to Applicant’s assertion that 70% of his role can be done from home is not acceptable for the business as one of the inherent requirements of a safety advisor role is to maintain a presence on site to promote safe practices and respond to safety events.
The Resources Industry Worker (Restrictions of Access) Directions required the Applicant to have his first vaccination by 1 December 2021. He had been made aware of this in advance. He apparently was not vaccinated by this date and so could not work on-site thereafter.
The contest between the parties as to whether or not the Applicant could work from home cannot be assessed without a full hearing. Consequently, the merits of the application are a neutral matter in deciding the extension of time issue.
Fairness as between the person and other persons in a similar position
There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for him to file this application. Taking into account all of the factors I am not persuaded that there are exceptional circumstances in this instance.
Consequently, the Commission is not empowered to extend time for the Applicant to make this application.
This application has been made out of time and so must now be dismissed. An Order [PR738889] to that effect will now be issued.
Final written submissions:
Applicant, 21 January 2022.
Respondent, 24 January 2022.
Printed by authority of the Commonwealth Government Printer
<PR738888>
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