Shaye Louise Watkins v ISS Health Services
[2022] FWCFB 180
•23 SEPTEMBER 2022
| [2022] FWCFB 180 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Shaye Louise Watkins
v
ISS Health Services
(C2022/3569)
| VICE PRESIDENT CATANZARITI | SYDNEY, 23 SEPTEMBER 2022 |
Appeal against decision [2022] FWC 1452 of Deputy President Anderson at Adelaide on 10 June 2022 in matter number U2022/2593 – permission to appeal refused.
Background
Ms Shaye Louise Watkins (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the Act) for which permission to appeal is required against a decision (the Decision)[1] of Deputy President Anderson issued on 10 June 2022. The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment with ISS Health Services (the Respondent) under s.394 of the Act.
The Appellant’s original application was filed eight days out of time, necessitating the Appellant to ask the Commission to grant a further period for the application to be made under s.394(2) of the Act. The Deputy President was not satisfied that there were exceptional circumstances to grant an extension of time in which to file the application. Accordingly, he dismissed the Appellant’s application.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material and it did not do so. The Appellant filed written submissions and made further oral submissions at the hearing on 8 August 2022.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant was employed as a cleaner for the Respondent working in healthcare settings since 2013.
In October 2021, a direction was issued by the South Australian government whereby persons working in health care settings were required to be vaccinated against COVID-19 by 1 November 2021. On 19 October 2021, the Appellant met with her manager, Mr Reed, as she was concerned about the safety risks of COVID-19 vaccines. The Appellant provided Mr Reed with a ‘Notice of Liability’. Mr Reed informed the Appellant that not being vaccinated would result in termination. The Appellant asked Mr Reed how her termination was going to be finalised, to which he replied that she would receive a written letter on 31 January 2022.
On 28 October 2021, the Appellant received an email and hard copy letter from the Respondent advising that if she did not comply with the vaccination requirement by 31 January 2022, her employment with the Respondent would terminate on that date.
The Appellant was stood down on 1 November 2021 as she remained unvaccinated and had not produced evidence of a medical exemption. The Appellant was paid sick leave between 8 – 26 November 2021 following the presentation of medical certificates. From 29 October 2021 – 31 January 2022, the Appellant was paid her accrued annual leave.
On one last occasion in November or December 2021, the Respondent telephoned the Appellant to ascertain her intentions and to check whether her vaccination status had changed. The Appellant did not return the calls.
In January 2022, with the 31 January deadline looming and not having received a response from the Respondent to her ‘Notice of Liability’ or request for assurances concerning vaccine safety, the Appellant resolved that she would not be vaccinated and would allow the events relating to her employment to take their course.
On 31 January 2022, the Appellant’s employment with the Respondent ended. The Appellant received her final payment in the first week of February.
Unknown to the Appellant, on 20 January 2022 Ms Werfel (General Manager of People and Culture) drafted a letter formally advising the Appellant of her termination, the reason for termination and final payment details. Ms Werfel sent the draft email to Mr Reef for on sending by email to the Appellant. Ms Werfel also arranged for the letter to be posted to the Appellant’s residential address.
The Appellant gave evidence that she did not receive the posted letter as she had moved residence in the last week of January, and she did not advise the Respondent of her new address. She further submits that the old address is her father’s home, and he also did not receive the letter either.
The email version of the letter was not sent to the Appellant at the time of drafting as Mr Reed was on leave and did not return until the second week of February.
Having not received the letter of termination by 17 February 2022, the Appellant emailed Mr Reed requesting a letter of termination which provided the end date of her employment and the reason for termination. Upon receiving this email, Mr Reed sent the Appellant the 20 January 2022 termination letter via email. Notably, the letter of termination stated that:
“… We provided you 3 months written notice that should you not be compliant with the vaccination requirement by the 31/01/2022, your employment with ISS will terminate on that date.
As there are currently no opportunities for redeployment for employees who do not comply with the vaccination requirement, this is your official notification that your employment with ISS Facility Services will cease on 31/01/2022…”
The following day, the Appellant wrote to Mr Reed requesting to have the date changed on the termination letter as she had not received it on 20 January 2022 but only on 17 February 2022. She stated that receiving a letter dated a month earlier then when it was received was “not acceptable”.
The Appellant lodged her unfair dismissal claim on 1 March 2022.
The Deputy President began by considering whether the Appellant’s application was out of time, which required consideration of the Appellant’s date of dismissal. The Deputy President was satisfied that the Respondent terminated the Appellant’s employment on 31 January 2022:
[41] In this matter the evidence overwhelmingly supports a conclusion that Ms Watkins’s dismissal took effect on 31 January 2022. I take into account that:
·ISS did not roster Ms Watkins for work after she was stood down from 1 November 2021 and was not provided proof of vaccination or a medical exemption between the date of stand down and the date of termination;
·Ms Watkins was told by Mr Reed on or about 19 October 2021 that her employment would end on 31 January 2022 if she remained in non-compliance with the heath setting direction;
·Ms Watkins was expressly informed by ISS in its letter of 28 October 2021 that “if you do not comply with the vaccination requirement by 31 January 2022, your employment with ISS will terminate on that date”; and
·Ms Watkins’s evidence was that she expected her employment to end on 31 January 2022 and was not surprised when she received a final payment in her bank account the following week.
The Deputy President found it was irrelevant that the Appellant did not receive a letter of termination until 17 February 2022 and that her application to the Commission was therefore made eight days beyond the 21-day statutory time-limit.
Next, the Deputy President considered each of the factors under s.394(3) of the Act to determine whether ‘exceptional circumstances’ existed for time to be extended.
The Deputy President first considered the reason for the delay under s.394(3)(a). The Appellant’s reasons for the delay were that: she was waiting for the Respondent to send her a formal letter of termination before lodging the application; she was researching her rights; and she was experiencing stress from the termination, vaccination requirements and moving house. The Deputy President did not find these reasons were an acceptable reason for the delay, noting that the Appellant’s explanation regarding researching her rights and experiencing stress were unconvincing and not an exceptional circumstance. He also noted that even though the Appellant only received the letter of termination on 17 February this still gave her four days to file her application with the Commission and be within time, and in any case, the Appellant was still able to file her application inside the 21-day time limit without the termination letter. The Deputy President concluded that the Appellant’s reasons for delay did not weigh in favour of a finding of exceptional circumstances.
Having regard to s.394(3)(b) of the Act, the Deputy President was satisfied that the Appellant had reasonable grounds to believe her employment had been terminated from 31 January 2022 and that this factor weighs somewhat against an extension of time.
The Deputy President considered whether the Appellant had taken action to dispute the dismissal pursuant to s.394(3)(c). He found that the Appellant initiated follow-up with the Respondent on 17 February 2022 regarding her termination and in doing so put the employer on notice that she remained unwilling to consent to vaccination and felt wronged. The Deputy President was satisfied that this consideration weighs somewhat in favour of an extension of time.
The Deputy President found that prejudice to the employer (s.393(3)(d)) was a neutral consideration.
In terms of the merits of the application (s.394(3)(e)), the Deputy President noted that there is considerable Commission authority in the unfair dismissal jurisdiction on whether dismissal of an unvaccinated person against COVID-19 working in a health care setting subject to a government vaccination mandate is for a valid reason. The jurisprudence generally points to dismissal in those circumstances being for a valid reason. That said, a dismissal for a valid reason can still be unfair for example, because of procedural unfairness or unfair termination terms. Therefore, on a very provisional view of the materials filed, he found that the Appellant did not appear to have a strong case on merit, however because he had not heard evidence or submissions, he considered the merits to weigh only somewhat against a finding of exceptional circumstances.
Having regard to fairness between persons in a similar position (s.394(3)(f)), the Respondent submitted that it would incur prejudice if the Appellant’s application were allowed as it would encourage other unvaccinated employees to make similar claims. The Deputy President was not persuaded this submission weighed against a finding of exceptional circumstances as there was no evidence that a flood of applications awaits or that the Appellant’s application is a test case and therefore found this was not a relevant factor.
When considered overall, the Deputy President found that the Appellant’s circumstances were not exceptional. Ultimately, the Appellant delayed filing her unfair dismissal application until she received a letter from her former employer confirming her termination. When it was received, the Appellant waited a further twelve days before filing the application, allowing the statutory time period to pass. Thus, in the absence of exceptional circumstances the Deputy President found that the time for lodging the application cannot be extended and he dismissed the application.
Grounds of Appeal
The Appellant did not provide substantive written submission to the Commission despite being directed to do so. The Appellant’s grounds of appeal as set out in her Notice of Appeal are as follows:
“1.The matter of my termination letter being sent to me on the 17th of February 2022 (only when I initiated communication with the line manager) when my dismissal officially took effect on the 31st of January was stated in my original application.
2. The fact that no evidence could be provided by ISS either by way of registered post or email as to the fact that the letter was sent or not. Those two options of delivery were present, neither option was used.
3. I provided my evidence by way of emails, and that evidence was not taken into consideration by the deputy.
4.I cannot make an application with Fair Work without my termination of employment letter.”
The Appellant submits that her appeal is in the public interest because all applications made to the Commission should be heard in a fair and just matter where all the facts and evidence are taken into consideration. Further, the Appellant submits that all applicants have the right to have a free and fair hearing of their case and she was not afforded this opportunity through no fault of her own.
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.587 of the Act is one to which s.400(1) of the FW Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Consideration
Grounds 1
In ground one, the Appellant submits her letter of termination was only sent to her on 17 February 2022, after she initiated communication with the line manager, despite her dismissal taking effect of 31 January 2022. We take ground one to assert that the Deputy President erred in finding that the date of dismissal was 31 January 2022. The Appellant submits that the date of dismissal should be 17 February 2022 as this is the date when the Appellant received her letter of termination from the Respondent.
We have already set out above, the Deputy President’s reasons for finding that the effective date of dismissal was 31 January 2022, namely that: the Respondent did not roster the Appellant for work after she was stood down; the Appellant was told by Mr Reed that her employment would end on 31 January 2022 if she remained in non-compliance with the direction; the Appellant was informed via letter on 28 October 2022 that if she did not comply with the direction her employment would terminate on 31 January 2022; and the Appellant’s own evidence that she expected her employment to end on 31 January 2022.
We find that the Deputy President approached the task of assessing the effective date of the Appellant’s dismissal in an orthodox manner. No appealable error is disclosed.
Ground 2
Ground two submits that the Respondent did not provide any evidence of the fact that they sent the Appellant her termination letter via post on 20 January 2022. Considering this submission at its highest, we take it to assert that the Deputy President erred in not making a finding regarding the fact that the termination letter sent via post was never allegedly received by the Appellant. The Deputy President’s findings, or lack thereof, in relation to the posted termination letter are set out below:
“[64] It matters not that the employer sent the emailed version of the letter later than intended due to error on its part. Nor do I need to make a finding whether the letter was in fact posted by ISS in late January 2022 and received at the Findon address in the ordinary course of post. Even if ISS made a second error by failing to post a hard copy or even if a hard copy posted was either not received at the Findon address or not passed on to Ms Watkins by her father, she had the emailed version in her possession on 17 February 2022.
…
[66] To deal with this issue I need not determine whether Ms Watkins contributed to the delay by not advising ISS of her change of address. An employer generally does not act unreasonably when communicating via contact details advised by an employee where changes to those details have not been notified and could not have been reasonably known by the employer. In this matter, the change of residential address appears to have overlapped somewhat with the dismissal date, thus making it plausible that circumstance and not fault on either side contributed to the posted letter (if in fact posted) not being received by Ms Watkins.” (emphasis added)
Having regard to the nature of the proceedings before the Deputy President, we agree that it was not necessary to make a finding in relation to the posted termination letter. Having accepted that the Appellant received the letter of termination via email on 17 February 2022, the Deputy President noted that the Appellant was still able to file her application within time and, in any event, there was no impediment to the Appellant filing her application without the termination letter at all. This approach was reasonably open to the Deputy President on the evidence and submissions before him and accordingly, it does not give rise to appealable error. We reject ground two.
Ground 3
Ground three alleges that emails submitted by the Appellant were not considered by the Deputy President at first instance. The Appellant appears to be referring to emails forwarded to the Chambers of Vice President Catanzariti prior to the appeal hearing. These emails were sent from the Appellant to Mr Reed on 17 and 18 February 2022, and Mr Reed’s reply on 18 February 2022 which attached the Appellant’s letter of termination. These emails are set out in the Deputy President’s Decision at paragraphs [33] – [36]. We therefore reject the Appellant’s submission that the Deputy President failed to consider these emails at first instance and reject this ground of appeal.
Ground 4
In ground four the Appellant alleges that she should be granted permission to appeal because the Commission requires applicants to provide their letter of termination when filing an unfair dismissal application. The Full Bench rejects this submission entirely. The Commission does not require applicants to provide their letter of termination as a pre-requisite or necessity to file an unfair dismissal application. At no point on the Form F2 – Unfair Dismissal Application does it request or require a letter or termination and further, there is nothing on the Commission website that would indicate a letter of termination is required to lodge an application. The Deputy President made this clear in the Decision noting that:
“[65] In any event, there was no impediment to Ms Watkins filing her application inside the 21-day period without the termination letter. Whilst it is understandable that Ms Watkins preferred to have written confirmation of her dismissal before litigating, she had a reasonable belief that her employment had been terminated from 31 January 2022 given the terms of the letter of 28 October 2021, her decision (made prior to termination) to remain unvaccinated, final payment she received in the first week of February 2022.”
Therefore, this ground of appeal is misconceived and cannot succeed.
Public Interest
We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.604(2) that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms S Watkins, on her own behalf.
Ms E Werfel, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
8 August.
[1] [2022] FWC 1452 (Decision).
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
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