Shaye Louise Watkins v ISS Health Services
[2022] FWC 1452
•10 JUNE 2022
| [2022] FWC 1452 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Shaye Louise Watkins
v
ISS Health Services
(U2022/2593)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 10 JUNE 2022 |
Application for an unfair dismissal remedy – date dismissal took effect – extension of time – discretionary considerations – no exceptional circumstances – application dismissed
On 1 March 2022 Shaye Watkins (Ms Watkins or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of her employment by ISS Health Services Pty Ltd (ISS or the employer).
There is a dispute over the date dismissal took effect. That dispute gives rise to a jurisdictional issue raised by ISS.
ISS say that dismissal took effect on 31 January 2022 meaning that Ms Watkins’s application was made twenty-nine days later, being eight days beyond the 21-day statutory time-limit. ISS submit[1] that for the application to proceed it requires an extension of time, which the employer opposes.
Ms Watkins says that the dismissal took effect only when she received a letter of termination from ISS on 17 February 2022, and that her application is within time. In the alternative, she submits that if an extension is required, it should be granted.
This decision deals with whether the application is out of time and, if so, whether an extension should be granted.
I issued directions on 23 May 2022.
I received materials from both Ms Watkins and ISS in advance of the hearing.
I conducted a hearing on the jurisdictional issue on 7 June 2022. Both parties were self-represented; the employer by Ms Elise Werfel, General Manager, People & Culture (SA).
Ms Watkins and Ms Werfel gave evidence.
Following the hearing I reserved my decision.
Facts
I make the following findings based upon the oral and written evidence before me.
Most facts are not in dispute. A matter in dispute is whether ISS sent a letter of termination to Ms Watkins by post on 21 January 2022 and, if posted, whether that letter was received. For reasons below, I do not need to resolve that factual dispute as my decision would not differ were I to accept Ms Watkins evidence that no such posted letter was received or passed on to her.
ISS provides, amongst other business activities, contract cleaning services to the South Australian government including in the public health sector.
Ms Watkins was employed as a cleaner working in health care settings. She had been employed since 2013.
In October 2021 a dispute arose between ISS and Ms Watkins over a direction issued by the South Australian government that persons working in health care settings were unable to work in such settings from 1 November 2021 unless vaccinated against COVID-19.
The disagreement came to a head on 19 October 2021 when Ms Watkins met her manager Mr Reed. Ms Watkins advised Mr Reed that she was concerned about safety risks of the vaccine. She gave him a ‘notice of liability’. For his part, Mr Reed informed Ms Watkins that not being vaccinated and not being able to attend the workplace would result in termination. Ms Watkins asked Mr Reed “how my termination was going to be finalised”. She was told that she would receive a written letter “when my employment would formally end” on 31 January 2022.[2]
On 28 October 2021 Ms Watkins received (by email, followed up by hard copy posted to her Findon address) a letter from ISS. It read (in part):[3]
“We advised you of the South Australian Government requirement for all Healthcare Workers to be vaccinated for COVID-19 by 1 November 2021 (at least first dose) and be fully vaccinated by 29 November 2021. You have advised that you do not currently comply with the vaccination requirement, do not intend to reply, and do not have an approved medical contraindication certificate.”
“In these circumstances, you will not be eligible to attend work from 1 November 2021. As there are no opportunities for redeployment for employees who do not comply with the vaccination requirement, you will be offered unpaid leave until 31 January 2022. If you choose to comply with the vaccination requirement prior to 31 January 2022, we will return you to work as soon as possible. You may access any entitlement to annual leave or long service leave from 1 November 2021”
“If you do not comply with the vaccination requirement by 31 January 2022, your employment with ISS will terminate on that date.”
From 1 November 2021, remaining unvaccinated and not having produced evidence of a medical exemption, Ms Watkins was stood down, as she was not permitted to enter the workplace.
Ms Watkins was paid sick leave between 8 to 26 November 2021, following the presentation of medical certificates on 3 and 12 November.
Thereafter, between 29 October 2021 and 31 January 2022 Ms Watkins was paid by ISS drawing down on her accrued annual leave.
On at least one occasion in November or December 2021 ISS telephoned Ms Watkins to ascertain her intentions and if her vaccination status had changed. Ms Werfel’s evidence was that approximately three messages were left; Ms Watkins recalls only one. In any event, Ms Watkins chose not to return the call(s) as ISS had not indicated in its voice message why the call had been made.
In January 2022, with the 31 January deadline looming and not having received a response from ISS to her notice of liability or request for assurances concerning vaccine safety, Ms Watkins resolved that she would not be vaccinated and would allow events relating to her employment to take their course.
On 31 January 2022 Ms Watkins’s employment with ISS ended.
Ms Watkins received her final payment by electronic transfer in the first week of February 2022.
Unknown to Ms Watkins, Ms Werfel had drafted a letter to Ms Watkins on 20 January 2022 formally advising of the termination, its reason and final payment details. Ms Werfel emailed the letter to Mr Reed for on-sending by email to Ms Watkins. Ms Werfel also arranged for ISS to post the letter to her Findon address on its records (being the same address used when posting the 28 October 2021 letter).
According to Ms Werfel, the letter was posted to that (Findon) address.
Ms Watkins’s evidence was that that address was her father’s house where she resided until the last week of January 2022 after which (over a two week period) she moved to a nearby suburb (Seaton).
Ms Watkins’s evidence was that neither she nor her father received the posted letter and that the letter was not subsequently given to her by her father.
Even though Ms Watkins commenced moving residence in the last week of January 2022, she did not advise ISS of her updated (Seaton) residential address.
Also unknown to Ms Werfel at the time she emailed the termination letter to Mr Reed (for on-forwarding to Ms Watkins), Mr Reed was on leave (and had not adjusted his in-box to notify sender). Mr Reed did not return until the second week of February 2022.
Ms Watkins considered her dismissal unfair. In the first week of February 2022 she researched her rights, and considered that she had grounds to file an unfair dismissal application.
Ms Watkins decided to wait for the formal letter of termination before proceeding.
Not having received the letter of termination by 17 February 2022, Ms Watkins sent an email to Mr Reed. It read:[4]
“Good morning Adam, I’m emailing you regarding Covid-19 Vaccination status and the termination of my employment. As you already know I asked yourself and the state manager to answer questions about potential side affects and the efficacy of the provisionally approved Covid-19 vaccine through a NOTICE OF LIABILITY on the 18th of October 2021,and those questions have not been answered to date. As consequence of this I can not give Informed consent to undergo this medical procedure and I will not undergo this medical procedure if these questions and concerns are not answered or dealt with. As per your last letter of communication, my employment would be terminated on the 31st of January if I had not received the Covid-19 vaccine by the mentioned date. As this date has now passed, I would wish to receive my letter of termination stating the end date of my employment and the reason for ending of my employment. I wish for this letter to be sent to my email and my home address. Kind regards Shaye Watkins.”
On receiving this email, Mr Reed, not having yet dealt with the earlier email from Ms Werfel in his in-box, immediately sent Ms Watkins the 20 January 2022 termination letter by return email. It was received by Ms Watkins that afternoon (17 February 2022).
The letter of termination read:[5]
“Official Notice - Termination of your Employment with ISS Facility Services on 31/01/2022
Dear Shaye,
As you are aware, ISS has previously notified you of the South Australian Governments Emergency Directive for Mandatory COVID-19 vaccination for all staff who work in Healthcare settings. Our records indicate that you currently do not comply with the vaccination requirements or do not have an approved medical contraindication certificate.
As ISS Facility Services provides services and employment opportunities within healthcare settings we are required to comply with the above mentioned Government legislation and mandated directions.
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.
Your termination payment will include:-
1. Any accrued unused annual leave entitlements
2. Long service leave (if applicable)
If you choose to comply with the vaccination requirement in the future, we welcome seeing your application.
Shaye, whatever your decision in relation to your future employment path, we offer our personal thanks for your past contributions to our business.
If you believe you have received this letter in error, or have been delayed in providing your vaccination evidence, please speak directly to your Manager. We ask that you provide your evidence by 30/1/2022.
We understand this is a challenging time, if you require any support, please reach out to our Employee Assistance Program provider Benestar for free and confidential counselling service on [REDACTED] or access the BeneHub online [REDACTED] with Company Identifier [REDACTED] and Token [REDACTED]
Kind regards
Elise Werfel
General Manager, People & Culture SA”
The next day (18 February 2022) Ms Watkins wrote a further email to Mr Reed in which she sought to have the “date changed” of the termination letter as she had not received it earlier. She stated that receiving a letter dated a month earlier was “not acceptable”[6].
Between 17 February 2022 and 1 March 2022 Ms Watkins decided to make an unfair dismissal claim.
Ms Watkins lodged her applications with the Commission by email on 1 March 2022.
Consideration
Is Ms Watkins application out of time?
A person is dismissed if their employment with the employer has been terminated on the employer’s initiative.[7]
It is well established that an employment relationship ends when an employee becomes aware of the employer’s decision to end it or has a reasonable opportunity to become aware of that fact.[8]
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.
I am well satisfied that ISS initiated the termination of Ms Watkins’ employment effective from 31 January 2022 and that Ms Watkins had reasonable awareness of that fact.
That the employer’s letter of 28 October 2021 was conditional in the sense that termination would occur from that date “if you do not comply with the vaccination requirement” does not alter this conclusion. As stated in Ayub v NSW Trains:[9]
“A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.”
The ISS letter of 28 October 2021 was crystal clear about the condition Ms Watkins was required to meet in order to not be terminated from 31 January 2022. Ms Watkins knowingly did not meet that condition. She did not provide proof of vaccination between 28 October 2021 and the date of termination.
Given that the dismissal took effect on 31 January 2022, it matters not that Ms Watkins was waiting for, and did not receive until 17 February 2022, a letter of termination.
As the dismissal took effect on 31 January 2022, Ms Watkins’s application was made twenty-nine days later, being eight days beyond the 21-day statutory time-limit.
An extension of time is required if the application is to proceed.
Should time be extended?
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.”
Time for late lodgement can only be extended if Ms Watkins establishes that “exceptional circumstances” exist within the meaning of s 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.[10]
The test of “exceptional circumstances” establishes a “high hurdle”.[11] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[12]
I apply s 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.”[13]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[14]
I now consider each of the factors in s 394(3).
Reason for the delay (s 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.[15]
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.[16]
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.[17]
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 an explanation for the delay is acceptable or credible.[18]
In this matter, the delay period of eight days arose between 22 February 2022 and 1 March 2022 (inclusive).
Ms Watkins’s explanation for the delay is threefold:
· that she was waiting for ISS to send the termination letter and needed that letter to lodge the claim, which was not received until the day she emailed the employer on 17 February 2022;
· that she was researching her rights and options; and
· that she was experiencing stress from the termination, the vaccination requirement and moving house.
None of these reasons, individually or collectively are an acceptable reason for delay.
During the whole of the delay period, Ms Watkins was in receipt of the termination letter dated 20 January 2022. She had received it on 17 February 2022, four days before the time period for lodgement of her unfair dismissal claim expired.
Further, as the termination letter, once read, informed Ms Watkins of the very same reason for termination and termination date advised in the ISS letter of 28 October 2021, Ms Watkins could have readily filed her application over the following four days after its receipt and been in compliance with the statutory time limit. Nothing materially new was advised in the termination letter on which Ms Watkins required extensive advice or research.
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.
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, and the final payment she received in the first week of February 2022.
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.
The submission that late lodgement is explained by Ms Watkins researching her rights and options is unconvincing. Ms Watkins’s evidence was that, on 31 January 2022 she considered her dismissal unfair. In fact, throughout the earlier stand down period she considered the employer to have acted unreasonably. Ms Watkins’ sense of injustice was well developed from the moment the 21-day period commenced. Further, Ms Watkins’s evidence was that she researched her rights in the first week of February 2022 and was aware of unfair dismissal rights at and prior to that time. I conclude that Ms Watkins had reasonable opportunity to research her rights and take advice prior to the statutory time limit expiring.
The submission that Ms Watkins was stressed from the events surrounding termination and moving house is also an unconvincing reason for delay. According to Ms Watkins, the house move occurred in the final week of January and first week of February 2022. Whatever stresses are associated with moving house, there is no evidence that changing residence made it impracticable for Ms Watkins to lodge an unfair dismissal application, given her strongly held view that she had been unjustly treated.
No doubt dismissal in the context of reconciling tension between personal views on vaccination and losing the security of employment was a stressful matter for Ms Watkins. However, dismissal for whatever reason is usually accompanied by stress and anxiety. It is a common, not exceptional circumstance.[19] There is no evidence that Ms Watkins was unable to pursue her rights on account of stress.
Ultimately Ms Watkins delayed filing her unfair dismissal application until she received a letter from her former employer confirming her termination. When it was received she waited a further twelve days before filing the application, allowing the statutory time period to pass. Neither this, nor other matters relied upon by Ms Watkins, are acceptable reasons for delay.
The explanations for delay considered individually or collectively do not weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
Ms Watkins had reasonable grounds to believe that her employment had been terminated from 31 January 2022. She was on notice for the three months prior that this would be the case if she remained unvaccinated. She received written confirmation from ISS of the termination on 17 February 2022, inside the statutory time period.
This factor weighs somewhat against an extension of time.
Action taken to dispute dismissal (s 394(3)(c))
Ms Watkins had a strong view on the vaccination mandate and a clear sense of injustice prior to, at the time of and following her dismissal. Despite that strong sense of injustice, she did not file an unfair dismissal application within time even though she was aware of and had researched her rights.
She did however initiate follow-up with ISS on 17 February 2021 “regarding Covid-19 Vaccination status and the termination of my employment”[20], and in that respect put the employer on notice on 17 February 2022 that she remained unwilling to consent to vaccination and felt wronged.
This consideration weighs somewhat in favour of an extension of time.
Prejudice to the employer (s 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.[21]
If an extension of time is granted, the claim would need to be further responded to by ISS, involving time and cost. That prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[22]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern whether the dismissal was for a valid reason and, aside from that question, whether Ms Watkins was denied procedural fairness or the dismissal otherwise unfair.
There is now 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.
Whilst on a very provisional view of the materials filed it does not appear that Ms Watkins has a strong case on merit, and as I have not heard evidence or submissions on these questions, I consider the merits of the application to weigh only somewhat against a finding of exceptional circumstances.
Fairness between persons in similar position (s 394(f))
ISS submit that it would incur prejudice in the form of other unvaccinated employees being emboldened to make similar claims or late claims if the claim by Ms Watkins is allowed to proceed.
I am not persuaded this weighs against a finding of exceptional circumstances. Claims, including late claims, by other persons are to be assessed on merit. There is no evidence that a flood awaits, or that Ms Watkins’ matter is some sort of test case amongst dismissed ISS employees. The claim by Ms Watkins should not be burdened by what others might or might not do. Given the absence of evidence to support the contention, I do not conclude any unique prejudice to the employer on this account.
In these circumstances, this is not a relevant factor.
Conclusion
The period of delay being eight days, in the context of a statutory twenty-one day time period, is not insignificant.
The explanations for delay do not collectively or individually weigh in favour of a finding of exceptional circumstances.
One factor, that Ms Watkins initiated contact with ISS on 17 February 2022, weighs somewhat in favour of granting an extension of time. Other factors weigh against or are neutral.
Considered overall, the circumstances are not exceptional. Ultimately Ms Watkins delayed filing her unfair dismissal application until she received a letter from her former employer confirming her termination. When it was received she waited a further twelve days before filing the application, allowing the statutory time period to pass.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Ms Watkins’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[23] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
S Watkins, on her own behalf
E Werfel, of and on behalf of ISS Health Services Pty Ltd
Hearing details:
2022
Adelaide (by video)
7 June
[1] Amended Employer Response (F3)
[2] A1 paragraph 1
[3] R9
[4] A2
[5] A4 and R2
[6] A3
[7] S 386(1)(a) FW Act
[8] Mihajlovic v Lifeline Macarthur[2013] FWC 9804; Ayub v NSW Trains[2016] FWCFB 5500; Foyster v Bunnings Group Limited [2017] FWCFB 3923
[9] 2016] FWCFB 5500 at [18]
[10] Smith v Canning Division of General Practice[2009] AIRC 959
[11] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[12] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[13] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[14] For example, John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7], [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[15] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[16] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[17] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[18] 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
[19] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [62]
[20] A2
[21] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[23] PR742464
Printed by authority of the Commonwealth Government Printer
<PR742463>
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