Stefania Screpanti v Desjan Pty Ltd
[2022] FWC 365
| [2022] FWC 365 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stefania Screpanti
v
Desjan Pty Ltd
(U2022/1114)
| COMMISSIONER HAMPTON | ADELAIDE, 9 MARCH 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – date dismissal took effect determined – whether exceptional circumstances exist justifying an extension of time – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.
What this decision is about
This decision concerns an application by Ms Stefania (Stefanie) Screpanti (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). Ms Screpanti is seeking compensation.
The termination of Ms Screpanti’s employment with Desjan Pty Ltd (Respondent or Desjan) was communicated orally and by email correspondence on 15 November 2021. It is common ground that the dismissal was effective on that date. The dismissal took place in the context of the Respondent’s position that the third version of the Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 (SA)[1] (the Direction) applied to the workplace and required, in effect, that Ms Screpanti be vaccinated against COVID-19 or have a medical exemption in order to continue her employment. Ms Screpanti was not vaccinated and did not hold a medical exemption at that time. I observe that the legal application and relevance to the workplace of the version of the Direction in place at the relevant time is now in dispute.
The s.394 application in this matter was lodged in the Fair Work Commission (the Commission) on 25 January 2022.
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). Adopting 15 November 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 6 December 2021.[2] The application was therefore filed 50 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). The Respondent opposes this request. The FW Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. The Respondent sought permission to be represented by a Lawyer, having regard to s.596 of the FW Act, largely on the basis of efficiency associated with the complexity of the matter. This request was not opposed by the Applicant and permission was granted in this instance principally on the basis as sought.[4]
Ms Screpanti was represented by Mr Robert Burns, who whilst not a lawyer or paid agent, indicated to the Commission that he is familiar with Court and Tribunal processes for both State and Federal jurisdictions.[5]
Ms Screpanti provided a witness statement[6] and gave sworn evidence on her own behalf. A witness statement[7] and a witness statement in reply[8] of Ms Jane Pappin, Managing Director/Director of Nursing of the Respondent was provided on behalf of Desjan. Comprehensive written submissions were also provided to the Commission by each party.
As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that, in the absence of exceptional circumstances, an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
I found the evidence of both Ms Screpanti and Ms Pappin to have been given openly and honestly. To the extent that the evidence included statements of belief about the consequences of certain facts, or submissions about matters to be considered by the Commission, I have treated these as such without excising them from the witness statements.
There are some elements of the Applicant’s case, particularly concerning the explanation for the delay in lodging the application, that were not supported by evidence. In the circumstances, including that Ms Screpanti was not represented by a lawyer or paid agent, I do not intend to draw a negative inference from the “failure” to provide some of that evidence that may have more directly engaged with the considerations provided by s.394(2)(b) of the FW Act. However, particularly given that the focus upon these matters was emphasised in the pre-hearing directions issued by the Commission, and on several occasions during the hearing itself, I must ultimately determine this matter based upon the evidence that is before the Commission.
The Commission ultimately admitted some correspondence[9] provided to Ms Screpanti by the Deputy Chief Public Health Officer of the South Australia Department for Health and Wellbeing (the Department) going to the scope of the Direction issued by the South Australian State Coordinator. The correspondence was provided after the application was lodged and addresses a matter in dispute between the parties relevant to the substantive merit of the unfair dismissal application. However, the correspondence refers to certain “interpretations”, apparently provided to the Department by the Applicant, although only 1 is revealed, and there is little evidence before the Commission about the detail of the communications leading to that point. The author of the letter was also not made available for cross-examination. The letter does not appear to address some of the key issues that would arise (the nature of the work performed at the workplace where the Applicant was engaged and whether it would fall within the scope of a “private nurse office”) if a decision about the coverage of the Direction was to be made by the Commission. In these circumstances, I found that the weight to be given to the document for present purposes is to demonstrate that Ms Screpanti earlier sought this advice and received it on the date indicated. I observe that, in any event, the matters addressed in the correspondence would need to be determined by the Commission itself, should the substance of the unfair dismissal application be arbitrated.
As will become clear, I have treated the merits of the application as, in effect, a disputed consideration under s.394(3) of the FW Act, primarily because of the contest about the coverage of the Direction and the need for that matter to be fully explored and determined if a full determination of the merits was to be made.
I have made the findings of fact that are set out below based upon my assessment of the sworn and documentary evidence before the Commission.
The immediate sequence of events leading to and following the dismissal
Desjan provides health services including:
·In-home nursing care for acute, NDIS, aged and veteran community
·Immunisation (including COVID-19 and other vaccinations)
·Nursing program with South Australia Police in cells managing the health and well-being of the detainees and officers
·Medi-hotel nursing
·Private school health centres
·Covid testing and swabbing
·Telehealth consults
Desjan trades as Pop-Up Community Care, Pop-Up Medics, and Pop-Up Health. Desjan currently conducts approximately 450 in-home visits per day. In general terms, clinical staff attend the office prior to and upon completion of their home care shift.
Primarily, most patients are referred from SA Health’s acute sector for wound care, medication management, and other activities associated with daily living. Currently Desjan has 530 employees, including approximately 420 nurses and administration staff. Although different arrangements have applied at times associated with the COVID-19 pandemic, administration staff attend the offices of Desjan each day to fulfil their role.
Ms Screpanti was employed by Desjan in the position of Scheduler/Operations Officer from November 2017 until 15 November 2021. This was a full-time position which involved, amongst other matters, scheduling clients and nurses for appointments.
On 19 August 2021, Ms Pappin requested Ms Screpanti review a draft company statement to be distributed to all staff about vaccination in the workplace in line with what Desjan considered to be the Australian Health Practitioner Regulation Agency guidelines.[10]
On 8 October 2021, Mr Andrew Pappin (the Respondent’s Business Manager) sent an email to all staff, including the Applicant, attaching a copy of the first version of the Direction. In that email, Desjan informed staff that a direction to include healthcare workers in community healthcare settings would be “issued within the next week.”[11]
On 8 November 2021, an updated Direction[12] was issued which extended its coverage to include defined healthcare settings, including private nurse offices.
On 19 October 2021, Ms Pappin had a discussion with Ms Screpanti about whether the Applicant was intending to have a COVID-19 vaccination. There is a dispute about the detail of this discussion but, at least for present purposes, it is sufficient to find that the Applicant indicated significant concerns about being forced by the Government to have a vaccination. The Applicant also held safety concerns about the vaccinations on offer at that time and was awaiting a “safer” vaccine option. By obvious implication, the Applicant had not been vaccinated at that time. Ms Pappin advised that staff who were unvaccinated would not be able to continue employment with Desjan. Ms Screpanti also sought that she perform her work from home, as an alternative to being vaccinated. Ms Pappin advised that working from home was not practical and was not an option for the scheduling team, and discussed issues with staff working from home during the lockdowns in 2020.
The notion of (using/expressly not using) a fake vaccination certificate arose in the 19 October 2021 discussion. It is unnecessary for me to determine the precise disputed manner in which the Applicant raised that matter and I draw no inferences from this for present purposes.
On 22 October 2021, Mr Pappin sent an email to all staff, including the Applicant, attaching a copy of the second version of the Direction which indicated that “due to our contractual requirements and our involvement in Local Heath Networks, the required date for compliance with vaccination remains the 1st of November for Pop Up Health”.[13] The email also indicated that “If you do not provide this proof before 31st October 2021 we will be unable to roster you for work”.[14]
Desjan offered counselling to staff during October 2021 in relation to the Direction. A consultation with a local Medical Officer was also offered and staff who requested medical advice were referred to their own General Practitioners.
In the time leading up to the dismissal, Ms Screpanti took a period of leave including some personal leave and annual leave. There is a dispute about the period of leave approved by the Respondent around this time. The Applicant contended that there was a period of annual leave that was approved by Desjan on 15 November 2021 for the period from 5 November to 19 November 2021. The Respondent contends that the approved leave ended on 12 November 2021. Neither party provided any documentary evidence to enable this factual dispute to be resolved. However, I observe that it does not appear to be directly relevant to the considerations under s.394(3) of the FW Act, except potentially to the merit of the unfair dismissal application itself. I will return to this aspect as part of that consideration.
On 15 November 2021, Desjan confirmed the termination of Ms Screpanti’s employment by way of correspondence, attached to an email, in the following terms:
“… …
Dear Stefania
I refer to our telephone conversation on 15th November 2021.
I confirm that you have informed us that you will not undertake a course of Therapeutic Goods Administration approved or recognised COVID-19 vaccine.
This means that you are unable to comply with the Emergency Management (Healthcare Setting Workers Vaccination No 3) (COVID-19) Direction 2021 (Direction) and are unable to engage in work or perform your duties under your employment contract with Desjan Pty Ltd.
We have previously provided you with information regarding the operation and effect of the Direction.
In the circumstances where there is no end date to the operation of the Direction and the needs of our business to fill the position of Operations/WHS Officer, we do not agree to your request to take paid annual leave.
As you are unable to lawfully perform the inherent requirements of your position by your actions, this means that you will not be able to work with us resulting in the termination of your employment.
In the circumstances where you cannot lawfully serve your notice period your employment will end immediately and we will pay you based on your length of service 4 weeks' pay.
You will also be paid your accrued entitlements and any outstanding pay, up to and including your fast day of employment. This includes the balance of any time off instead of overtime accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.
We thank you for your contribution throughout your employment and wish you the best in your future endeavours.
Yours faithfully
… …”.[15]
This correspondence followed a discussion earlier that day between Ms Screpanti and a Human Resources Manager of the Respondent. During that conversation, the Applicant confirmed, in effect, that she had not been vaccinated. The Manager indicated that this meant that Ms Screpanti could not work for the Respondent. Ms Screpanti, correctly, understood that her employment was being terminated.
On 22 November 2021, Ms Screpanti wrote[16] to Desjan’s Human Resources Manager and raised concerns about what she described as the “unwarranted and unlawful action of my termination”, which the Respondent had indicated was “mandated by the State Government”. Amongst the many grounds of concern cited by Ms Screpanti in this correspondence were contentions and allegations about:
· The manner of communicating the dismissal;
· A breach of the Privacy Act 1988 (Cth) and the offence of taking adverse action;[17]
· The inconsistency of the Commonwealth and State law and the invalidity of the State (Pandemic related) laws under the Australian Constitution; and
· Certain allegations of bullying in connection with the implementation of the Direction by Desjan.
Ms Screpanti concluded the letter in the following terms:
“…I have options that I would prefer not to employ so I would expect some professional courtesy and human dignity to be retained. There was absolutely no discussion of references or other such requirements and so I look for some sort of restitution such as the reappointment of myself to the position I held and as I am quite capable of working from home I can do so with very little need to be onsite and if so I would most likely agree to some type of testing if required as long as all Staff were tested also.
I would appreciate a formal response and in a formal written format in a letter signed by the company officer and delivered by Australia Post. I would appreciate your prompt action in this request however I would presume 5 working days would be sufficient and then I will decide on what further action I must take.”[18]
On 2 December 2021, the Respondent replied to Ms Screpanti and set out its version of the history of the matter. The Respondent reaffirmed its view that the Direction applied and outlined its purported impact upon the employment of Ms Screpanti. The Respondent also acknowledged the Applicant’s distress but denied that it had acted inappropriately or caused that distress and ruled out certain alternative proposals. The correspondence concluded with the following:
“… …
Desjan is unable to reappoint you to your position because you remain unable to comply with the Direction and further the requirements of the position cannot be properly achieved by working from home.
… ...
I can provide you with a letter of reference and a statement of service, if you wish.”[19]
For context, I note that the initial 21-day period fell on or about 6 December 2021.
On 9 December 2021, Ms Screpanti provided a very detailed response to the Respondent’s 2 December letter, including more details of the allegations and contentions set out in the 22 November 2021 correspondence. The Applicant’s letter concluded with the following:
“… …
I look forward to a tempered and honest response regarding this issue, however if I do not receive any response within 5 working days, I will be forced to submit a claim of unfair dismissal and the development of a claim under tort.”[20]
On 16 December 2021, the Respondent replied[21] by email confirming that it maintained its position as communicated on 2 December 2021.
Ms Screpanti’s evidence is that, during late December through to mid-January 2022, she was researching the scope of the Direction by reference to the Department’s website, including the “frequently asked questions” material. It is also Ms Screpanti’s evidence that she considered her workplace was not a health care setting for the purposes of the Direction at some point after 16 December 2021 but before the unfair dismissal application was ultimately lodged. It is a reasonable inference that, despite advising the Respondent on 9 December 2021 that the unfair dismissal application option would be taken, Ms Screpanti elected not to do so until later in January 2022.
On 25 January 2022, Ms Screpanti lodged the Form F2 unfair dismissal application with the Commission. The application stated[22] that the Applicant was notified of the dismissal, and that the dismissal took effect, on 15 November 2021.
At some point, with the aid of Ombudsman SA, the Applicant formally sought a response to some questions about the scope of the Direction that she had earlier raised with the Department. Based upon the limited evidence before the Commission, the formal written request to the Department was made in the week before, or around, 21 January 2022[23] and the reply from the Department was supplied on 17 February 2022.[24] This apparently followed some earlier emails seeking clarification of the scope of the Direction; however, the details of the timing and content of the emails is not before the Commission.
It is clear on the evidence that the dismissal of Ms Screpanti was expressly communicated, and took effect, on 15 November 2021[25] and I adopt that as the date for the purposes of s.394(2) of the FW Act. As a result, an extension of time of 50 days is required in this matter.
Should an extension of time be granted?
Initial submissions advanced on behalf of Ms Screpanti appeared to suggest that the notion of the application being out of time were a “disingenuous and fatuous claim”.[26] However, I understand that Ms Screpanti does not dispute that the application was lodged with the Commission beyond the 21-day initial limit and that an extension of time is required. In any event, these are the facts of the matter.
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 stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon.[27] The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[28] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[29]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) is a high hurdle.[30] This requirement contrasts with the broad discretion conferred on the Commission under s.185(3) of the FW Act 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.
Section 394(3) of the FW Act requires that, in considering whether there are exceptional circumstances so as 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.
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. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[31] I now consider these matters in the context of the application currently before the Commission.
Reason for the delay
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 for the delay. 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 on their own merits.[32]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[33]
Ms Screpanti principally relies upon the following propositions as reasons for the delay:
· “I have attempted to resolve the issue of my employment termination with my employer since 15th November 2021. They ceased responding to my legitimate issues which I raised with them. My case is strong and if there was any other way to resolve this, I would be open to discussing options, however, the dismissive attitude exhibited by my employer in such a cavalier fashion has left me no real choice.”[34]
· “It should be clear that Stefanie tried to resolve this in a fair and equitable manner and pointed out the misinformed and wrongful and unlawful application of the directives from the State government actors. This was compounded by her application for annual leave being approved one week before her termination that was quite unexpected.”[35]
· “The reason for the delay beyond the 21 days has been stated clearly and succinctly as Stefania entering into correspondence with Desjan Pty Ltd to resolve the matter in an equitable and fair manner. Registered mail through Australia Post was used by Stefania to ensure it was received and a confirmation received when delivered and signed for by Desjan Pty Ltd. Their excessively long durations to respond, surprisingly, all electronically, were perturbing and puzzling. It must be stated that without any counselling, and while on annual leave at home, with absolutely no warning, the termination email was received on the same day that leave was approved. It must be emphasized that the belief that Desjan Pty Ltd was in error in a number of unlawful actions were pointed out in an attempt to have a review of their view to reinstatement and avoid any necessity to put either of us in jeopardy.”[36]
· “It was considered essential that formal official response was required to submit to the Commission from the Department of Health and Wellbeing and as such has only just been received and is submitted here as prima facie evidence of the mistaken belief that Stefania was obligated to be vaccinated in what was not a "health setting".”[37]
In closing submissions, the Applicant also referred to the timing of the dismissal and the impact of the Christmas period. In addition, it was suggested that delays in receiving replies from the Respondent should be taken into account.
For reasons that follow, I do not consider that Ms Screpanti has provided a credible or satisfactory explanation for long periods of the delay in making the unfair dismissal application.
Ms Screpanti knew that she had been dismissed on 15 November 2021 and was aware of the grounds relied upon by the Respondent at that point. It is also clear that Ms Screpanti held strong views about the legal validity of the Direction and the safety of the vaccines available at that time.
It is also apparent that Ms Screpanti made the decision to initially approach her former employer to seek to advance a resolution to her dismissal as an alternative to litigation at that point. However, by 2 December 2021, Ms Screpanti’s concerns and position had already been firmly rejected by the Respondent and rather than lodging an unfair dismissal application, the Applicant decided to put a further position to Desjan on 9 December 2021. That correspondence indicated, in effect, that she would file an unfair dismissal claim if her concerns were not met within 5 business days. By 16 December 2021, the Respondent had again confirmed that it would not change its position.
In that light, and noting that the 9 December 2021 correspondence provided a 5 business days deadline, the Applicant must also accept the responsibility for wating for any responses from the Respondent, rather than taking actions to lodge the unfair dismissal application in this Commission.
This application was still not lodged until 25 January 2022.
Although Ms Screpanti sought clarification of the Department’s view about the applicability of the Direction, her evidence was that she already considered that the Direction did not apply and was, in effect, awaiting some confirmation which was sought, and ultimately supplied, well after the 21-day period. Further, the Applicant did not have a formal response prior to lodging the application. This issue is relevant, but the Applicant must take responsibility for the decision to delay making the application despite her strong views about the unfairness of the dismissal more generally that she held at the time of the dismissal itself.
The disputed period of leave was claimed by Ms Screpanti to have added to the unfairness of the dismissal,[38] but it does not appear to provide a meaningful part of the explanation for the delay. There was also little by way of an explanation linked to the impact related to the time of the year. However, whilst some accommodation might reasonably be considered, there was no detailed evidence provided about its impact and, in any event, the dismissal and the 21-day initial period occurred well prior to the Christmas and New Year holiday period.
The delay in this matter is lengthy and my conclusion about the purported explanation for the delay tells against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that Ms Screpanti was aware of her dismissal on 15 November 2021 when she received the letter of termination. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Screpanti did take actions to dispute her termination with the employer. This included raising the notion of litigation and putting the Respondent on notice that an unfair dismissal application might be brought against it. Ms Screpanti also took actions to seek clarification of the scope of the Direction. Whilst the timing of these steps and the decision taken by the Applicant not to lodge this application earlier acts as a significant militating factor, this consideration supports a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The employer claims prejudice in the following terms:
“I along with our management team are devoting time, finances, and resources to deal with this late application during a time of additional workload and health requests to minimise transmission and manage COVID-19 in our community, workforce, and individuals. The time, finances, and resources spent to deal with this late application should rather be allocated to managing staff and patient demands.”[39]
The employer further claims prejudice as follows:
“Stefania's actions in filing her witness statement and submissions after the directed date and after (Ms Pappin) had filed my witness statement results in further prejudice to Desjan because we have had to spend more time, energy and resources to respond to this out of time application which could have been expended on operational matters as set out in paragraph 25 of my witness statement dated 15 February 2022.”[40]
The Applicant was dismissive of this prejudice on the basis that:
“It is incongruous to a lawful society that an employer should state the inconvenience of putting a defence of “prejudice against them” when their unlawful actions cannot be and veracity against the known codified laws and upheld as precedents by the High Court of Australia.”[41]
Although I understand the depth of the Applicant’s conviction on the issue, prejudice to the Respondent is one of the considerations to be weighed along with the other factors. The issues raised by the Respondent were supported by some evidence and this is a factor marginally weighing against a finding of exceptional circumstances, noting that the delay in lodging the application itself has not created the prejudice.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[42]
Ms Screpanti was dismissed by Desjan on the basis of its view that the Direction applied to the workplace and required that its employees, including the Applicant, had to provide proof of a COVID-19 vaccination or a valid medical exemption to continue to work in its delivery of health care services. In the absence of “compliance” by Ms Screpanti, the Respondent took the view that she could no longer perform or meet the inherent requirements of her position and dismissed the Applicant.
The application represents a broad axe opposition to State Government initiated COVID-19 vaccination mandates including propositions associated with the alleged inconsistency of the Direction and approach of the employer with a number of Commonwealth laws and international conventions, personal concerns about the safety and efficacy of the requirements, a contention that the Applicant’s work could productively be performed at home, concerns about how the requirement and the dismissal was handled by Desjan, and more recently, particularly as part of this process, a contention that the Direction did not apply to Ms Screpanti’s workplace.
Some of the broad axe concerns raised in the application have been considered by various Courts and by the Commission. The competing contentions about the capacity to work from home and the processes adopted by Desjan to apply the Direction to its workplace would need to be the subject of more detailed evidence than is presently before the Commission to enable any decision or conclusions to be made on these aspects.
Based upon the evidence that is before the Commission and the Court and Tribunal decisions to date, it is likely that the disputed coverage of the Direction would be critical to the merits of this application. The version of the Direction[43] in place at the time of the dismissal, covered various forms of health care settings including “primary healthcare facilities”. This was defined to include “private nurse offices” and would appear to be potentially relevant here; however, this term is not defined within the Direction. Whilst the competing Departmental information supplied to the parties about the scope of the Direction may be of some assistance, in order to make a decision about its scope, the Commission would need more comprehensive evidence about the nature of work performed at the relevant workplace and submissions as to the meaning of ‘private nurse office’ for the purposes of the Direction.
Based upon the limited evidence and submissions about this point, I consider that whilst the Respondent appears to have a strong case, the Applicant has at least an arguable case on the scope of the Direction. I have weighed all aspects of this consideration into the overall assessment of exceptional circumstances required in this matter.
Fairness as between the person and other persons in a similar position
Subject to one potential issue, neither party brought to my attention any relevant matters concerning this consideration and I am unaware of any relevant factors.[44] Although the Respondent referred to cases where an extension of time was rejected for other unfair dismissal applicants who had “refused” to undertake vaccinations, each case must be determined on its own facts. The application of consistent principles and approaches is relevant, and I have done so in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this case.
Conclusion
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a) of the FW Act, and an extension of time has not been granted, there is not a valid application before the Commission.
On that basis it is appropriate to dismiss the application and an Order[45] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
R Burns on behalf of the Applicant.
J Abbott of O’Loughlins Lawyers, with permission on behalf of the Respondent.
Hearing details:
2022
February 21
Video Hearing.
[1] Various versions of the Direction were issued by the State Coordinator under the Emergency Management Act 2004 (SA).
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Section 394(3) of the FW Act.
[4] Applying the approach set out in Grabovsky v United Protestant Association of NSW Inc[2018] FWCFB 4362 at [35] – [38] and noting that the late provision of some evidence contributed to the complexity of the matter.
[5] Transcript PN17.
[6] Exhibit A1.
[7] Exhibit R1.
[8] Exhibit R2.
[9] Exhibit A2.
[10] Exhibit R9.
[11] Exhibit R10.
[12] Emergency Management (Healthcare Setting Workers Vaccination No 3) (COVID-19) Direction 2021 – exhibit R8.
[13] Exhibit R11.
[14] Ibid.
[15] Exhibit R7.
[16] Exhibit R3.
[17] An apparent reference to the General Protections provisions of the FW Act.
[18] Exhibit R3.
[19] Exhibit R3.
[20] Exhibit R5.
[21] Exhibit R6.
[22] At questions 1.3 and 1.4 of the Form F2.
[23] Transcript PN163 – following making phone calls.
[24] Exhibit A2.
[25] Ayub v NSW Trains[2016] FWCFB 5500.
[26] Rebuttal and Response written submissions of the Applicant.
[27] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[28] Ibid.
[29] Ibid.
[30] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[31] Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[32] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[33] Ibid.
[34] Form F2.
[35] Rebuttal submissions of the Applicant 8 February 2022.
[36] Submissions of the Applicant 17 February 2022.
[37] Submissions of the Applicant 17 February 2022.
[38] Transcript PN109.
[39] Exhibit R1, Witness Statement of Ms Pappin.
[40] Exhibit R2, Second Witness Statement of Ms Pappin.
[41] Rebuttal submissions of the Applicant 8 February 2022.
[42] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[43] Emergency Management (Healthcare Settings Workers Vaccination No 3) (COVID-19) Direction 2021.
[44] See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.
[45] PR739083.
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