Stephanie Anne Scanlan v Aged Care and Housing Group Inc
[2022] FWCFB 69
•10 MAY 2022
| [2022] FWCFB 69 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Stephanie Anne Scanlan
v
Aged Care and Housing Group Inc
(C2022/1129)
| VICE PRESIDENT CATANZARITI | MELBOURNE, 10 MAY 2022 |
Appeal against decision [[2022] FWC 174] of Deputy President Anderson at Adelaide on 28 January 2022 in matter number U2022/284 – permission to appeal refused.
Background
Ms Stephanie Anne Scanlan (the Appellant or Ms Scanlan) 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 28 January 2022. The Decision concerned an application brought by the Appellant for an unfair dismissal remedy from her employment with Aged Care and Housing Group Inc (the Respondent or ACH) under s.394 of the Act.
The Appellant’s application was filed 14 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.
This matter was listed for permission to appeal only. Accordingly, directions were issued for the filing of material by the Appellant. Both parties indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.
Decision Under Appeal
On 4 January 2022, Ms Scanlan lodged an unfair dismissal application after she was allegedly dismissed from her position as a community support worker with ACH. ACH was subject to a COVID-19 vaccination mandate for staff working in the aged care sector following a direction by the State Coordinator for South Australia under the Emergency Management Act 2004 (SA).
Ms Scanlan had elected not to be vaccinated against COVID-19 and was therefore unable to provide evidence of her vaccination by 29 November 2021, as required by ACH. The unfair dismissal application records that Ms Scanlan was informed of her dismissal on 19 November 2021 and it took effect on 30 November 2021. Therefore, Ms Scanlan’s application was not made within 21 calendar days of her dismissal taking effect. In response to the unfair dismissal application, ACH submitted that the application should be dismissed because it was out of time, Ms Scanlan had not been dismissed, and, if she had, the dismissal was not unfair.
In the Respondent's submissions to the Commission in respect of the extension of time issue they outlined:
a)Ms Scanlan is currently employed by ACH on a casual basis in the position of
support worker (to provide in-home care services to vulnerable, elderly customers in the community);
b)on 30 November 2021, Ms Scanlan failed to provide evidence to ACH that she had:
-received at least one dose of a TGA approved or recognised COVID-19 vaccine; or
-received, or had evidence of a booking to receive, a second dose of a TGA approved or recognised COVID-19 vaccine within the interval after the first dose recommended by the ATAGI for that COVID-19 vaccine;
c)this was a breach of the Emergency Management (In-home and Community Aged Care and Disability Support Workers Vaccination) (COVID-19) Direction 2021 (Direction);
d)ACH was unable to roster Ms Scanlan to work shifts as a support worker from 30 November 2021, as doing so would have been unlawful;
e)ACH wrote to Ms Scanlan on 2 November 2021, on 22 November 2021 and 30 November 2021 confirming the above;
f)the information provided in the letter of 30 November 2021, confirmed that when Ms Scanlan complied with her obligations under the Direction, she would be returned to the roster and provided with work; and
g)the information provided to Ms Scanlan did not amount to dismissal.
At the hearing, the Deputy President permitted Ms Scanlan to amend her application to plead that she had been constructively dismissed and that she had filed her unfair dismissal application in time.[2] The Deputy President noted that Ms Scanlan’s amendment to her application appeared to be a response to ACH’s claim that she had not been dismissed.
Ms Scanlan submitted that because she was ‘constructively dismissed’ and remains ‘on the books’ her application is no longer out of time as the date of dismissal is now said to be ‘unclear’. The Deputy President dealt with that Ms Scanlan’s submissions at paragraphs [34] – [37] as follows:
[34] I need not deal with whether Ms Scanlan was constructively or otherwise dismissed to dispose of this submission. The application before the Commission is the application filed by Ms Scanlan on 4 January 2022 as amended. Whatever its particulars, it remains a late application. Both the application as filed and now as amended rely on ACH’s letter of 30 November 2021 and the fact that Ms Scanlan has not been rostered since to allege (on her case) that she was dismissed (whether constructively or otherwise).
[35] Confusingly, in order to rebut the employer’s submission that an extension of time is needed, Ms Scanlan suggested at the hearing that she was not dismissed at all (and that consequently her application is not late).
[36] If Ms Scanlan was not dismissed, she has no basis to file an unfair dismissal claim and her application would be dismissed on jurisdictional grounds.
[37] Given the confused and inconsistent positions advanced by Ms Scanlan (and making allowance for the fact that she is self-represented), and whilst noting but not determining the employer’s jurisdictional objection that no dismissal occurred, I deal with the extension of time issue should it be the case that Ms Scanlan was dismissed within the meaning of the FW Act.
[38] The 21-day statutory period after the alleged dismissal (or “constructive dismissal”) on 30 November 2021 expired on 21 December 2021. Having filed her application on 4 January 2022, Ms Scanlan’s application is fourteen days out of time.[3]
Furthermore, the Deputy President at paragraphs [55], [57], [58] and [68], respectively addresses Ms Scanlan’s awareness of the dismissal, speaks of the action taken by Ms Scanlan to address the dismissal and examines the merits of the unfair dismissal application:
[55] To the extent this was a dismissal (or constructive dismissal as alleged), Ms Scanlan was aware that the employer’s decision took effect from 30 November 2021.
[57] That Ms Scanlan was well aware of the alleged dismissal taking effect and its reason makes this a neutral consideration and does not weigh in favour of an extension of time.
[58] Ms Scanlan disagreed with the vaccination mandate and prior to the alleged dismissal the employer was on notice of the views held by Ms Scanlan. A week prior, Ms Scanlan had foreshadowed legal action amongst other demands.
[68] Without having determined the dismissal question, and notwithstanding apparent
confusion in Ms Scanlan’s position, a provisional consideration of the evidence and submissions suggest that there may be some force in the employer’s claim of no dismissal. This is because the unfair dismissal jurisdiction concerns itself with the ending of an employment relationship, rather than termination of specific contracts of employment. However, not having dealt in a material way with this question, I consider it neutral for current purposes. It is open for Ms Scanlan to assert that she was a “regular casual employee” within the meaning of the FW Act, and dismissed on the employer’s initiative.[4]
The Deputy President then turned to consider whether exceptional circumstances for the delay in filing the application existed in accordance with s.394(3) of the Act, which requires that, in considering whether to grant an extension of time, the Commission take into account:
a) the reason for the delay;
b) any action taken by the person to dispute the dismissal;
c) prejudice to the employer (including prejudice caused by the delay);
d) the merits of the application; and
e) fairness as between the person and other persons in a like position.
In determining the extension of time issue, the Deputy President did not make a finding as to whether Ms Scanlan was dismissed. Rather, the Deputy President proceeded on the basis that Ms Scanlan’s employment ended on 30 November 2021, by way of an ‘alleged dismissal’.
Accordingly, having regard to all the factors above, the Deputy President concluded:
[73] No factors weigh in favour of granting an extension of time.
[74] The period of delay being fourteen days, in the context of a statutory twenty-one day time frame, is not insignificant.
[75] The explanations for delay individually and in combination are not acceptable or
reasonable. Despite making demands and threatening legal action one week prior to being taken off the work roster, Ms Scanlan took no action to advance her interests or assert her rights in the month that followed. She gave her alleged rights no particular priority.
[76] If it were the case that Ms Scanlan had been dismissed within the meaning of the FW Act on 30 November 2021, I conclude that there are no exceptional circumstances warranting an extension of time to file this unfair dismissal application.
[77] There being no exceptional circumstances, the time for lodging the application cannot be extended.
Principles on Appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error,[6] or a preference for a different result.[7] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[8]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[9] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[10] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Grounds of appeal
The grounds for permission to appeal were stated by Ms Scanlan in the following terms:
1) That the Deputy President erred in law and applied irrelevant factual findings to his decision.
2) That Deputy President erred in misdirecting himself as to his factual findings and then erred in law in the application of such legal findings.
Taking into account Ms Scanlan’s written submissions, we have distilled the alleged errors to be as follows:
1) ACH had acted under a mistaken belief that the Direction was lawful and binding upon it and thereafter furloughed Ms Scanlan on 29 November 2021, and that the Deputy President in simply accepting the ACH’s assertion that the Direction was lawful and binding, misled itself by taking judicial notice of it;
2) the Deputy President misled itself in accepting the assertion that Ms Scanlan was in fact ‘terminated’ on the same day as the so-called furlough commenced and as such the Deputy President ought to have made a finding of fact as to the actual date of termination, and again misled himself on the basis that he simply accepted the date of dismissal (presumedly) written on the ‘form’;
3) having amended her application to argue she had been ‘constructively’ dismissed, Ms Scanlan submits that the actual date of her dismissal would now be the date of her initial furloughing; and
4) ACH had since decided to terminate Ms Scanlan’s employment and therefore, according to Ms Scanlan, she had a further claim of unfair dismissal on that date that she is to be ‘terminated’.
Consideration
Ground 1
Ms Scanlan’s first ground of appeal is that ACH acted under a mistaken belief that the Direction was lawful and binding. On this point, we find that at all material times in the proceedings before the Deputy President, the Directions had not been declared by a court to be invalid. As an administrative tribunal, the Commission performs its functions according to law, proceeding on the basis that legislation and delegated legislation is valid until a court says otherwise. Therefore, we find no basis to conclude that the Deputy President fell into error by acting under a mistaken belief. It was open to the Deputy President to consider that the Direction was lawful and binding upon ACH and his so doing does not give rise to an appealable error. We therefore reject ground 1 of the appeal.
Ground 2, 3 and 4
It is convenient to deal with grounds 2, 3 and 4 of the appeal together as they all relate to whether the Deputy President erred by not making a finding of fact as to whether Ms Scanlan was dismissed.
As discussed above, instead of making a finding as to whether Ms Scanlan was dismissed, the Deputy President proceeded on the basis that Ms Scanlan’s employment ended on 30 November 2021, by way of an ‘alleged dismissal’. Importantly, in calculating the period to which the application is out of time the Deputy President correctly relied on the letter of 30 November 2021, as Ms Scanlan’s initial and amended application both rely on this date. Additionally, under this approach, the Deputy President considered the relevant alternatives in circumstances where Ms Scanlan was or was not dismissed by ACH, as follows:
[36] If Ms Scanlan was not dismissed, she has no basis to file an unfair dismissal claim and her application would be dismissed on jurisdictional grounds.
[76] If it were the case that Ms Scanlan had been dismissed within the meaning of the FW Act on 30 November 2021, I conclude that there are no exceptional circumstances warranting an extension of time to file this unfair dismissal application.
By considering both circumstances, that is, if Ms Scanlan was or was not dismissed, the Deputy President has correctly dealt with the question of dismissal. Especially having regard to the fact that the materials before the Deputy President were confused as Ms Scanlan had adopted inconsistent positions in her application. Therefore, we find that this approach was open to the Deputy President and does not disclose any appealable error. We reject grounds 2, 3 and 4 of the appeal.
Public Interest
Having considered the Appellant’s submissions and all the materials filed on appeal, we are not satisfied that there is an arguable case of error. As discussed above, it is clear that the basis on which the Deputy President reached his Decision discloses an orthodox approach to the determination of the Appellant’s unfair dismissal application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on the evidence before him. Further, 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 of this kind;
·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
Hearing details:
Matter decided on the papers.
[1] Stephanie Anne Scalan v Aged Care and Housing Group Inc[2022] FWC 174 (Decision).
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 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) 192 FCR 78 at [44] – [46].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27].
[7] Ibid at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[8] [2010] FWAFB 5343, 197 IR 266 at [24] – [27].
[9] Wan v AIRC (2001) 116 FCR 481 at [30].
[10] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
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