Stephanie Johnston v NGI Holdings P/L as Trustee for Elwood Family Trust

[2020] FWC 5235

[2020] FWC 5235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephanie Johnston
v
NGI Holdings P/L as Trustee for Elwood Family Trust
(U2020/11498)

COMMISSIONER YILMAZ MELBOURNE, 1 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Stephanie Johnston (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] Miss Johnston commenced employment with NGI Holdings Pty Ltd T/as Trustee for Elwood Family Trust (the Respondent) on or about 12 September 2019 as a part-time crew member. The unfair dismissal application was lodged on 24 August 2020.

[3] The Respondent is a McDonald’s franchise fast food outlet operating in regional Victoria. Due to the COVID-19 pandemic, the franchise made it compulsory that all employees wear face masks as 1.5 metre social distancing cannot be enforced. The Respondent submits the policy is consistent with the recommendation of the Victorian Chief Health Officer. Management informed all staff that on delivery of the masks, the wearing of masks would be enforceable.

[4] The Respondent submits that the Applicant informed her managers that she refused to wear a mask in more than one meeting and stated that she would rather leave than wear a mask. The Applicant submits she had a mental health condition that exempted her from wearing a mask, and because she was informed that her options were to wear the mask or resign, she opted to resign. The Respondent denies that the Applicant had informed it of her alleged medical condition, and it denies any knowledge of her alleged mental health condition.

[5] There is no contention that Miss Johnston tendered her resignation by email on 22 July 2020 in writing. The letter of resignation states that she regrets to have to send the email and that she is disappointed in herself for not being able to commit to the new changes. The letter then proceeds to thank management for giving her the opportunity to work at the Benalla site and wishes them all the best. Miss Johnston provided no notice in her letter of resignation.

[6] Section 394(2) of the 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). The period of 21 days ended at midnight on 12 August 2020. The application was therefore filed 12 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and objects to the application on the ground that Miss Johnston resigned.

[7] The 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, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[8] Section 394(3) requires that, in considering whether 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.

[9] 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. I now consider these matters in the context of the Application.

Reason for the delay

[10] The 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. 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 the applicant’s favour, however all of the circumstances must be considered. 3

[11] In the Applicant’s outline of submissions materials, she says that she had wanted to avoid taking the matter to the Commission and relied on her mental health support worker to contact the Respondent to try to sort out a resolution. The Applicant submits she believed her support worker contacted the Respondent and left messages. She submits she was unable to contact the Respondent herself because she was not in the right frame of mind. However, no evidence was submitted to support the submission that any contact was made with the Respondent prior to the filing of the Application by either the Applicant or anyone on her behalf.

[12] The Respondent submitted that no contact was made by anyone on behalf of the Applicant until later in the evening after it filed its outline of submissions, a message was left for Mr Bennett that a Karina had called.

[13] The primary reason relied on by the Applicant in her written materials and during the hearing was the reliance on her mental health support worker to act as her representative to contact the Respondent to resolve her concern over her resignation. Ordinarily, error from representatives may be reasonable explanations, however, not where the Applicant is not blameless. Miss Johnston admits to making no effort to contact the Respondent or question her support worker.

[14] On the day of the hearing, Miss Johnston chose not to give evidence under affirmation but sought to rely solely on her submissions. It was only after she was prompted for more information and with the coaching from her support worker, that she made further submissions concerning reasons for the delay. Those reasons included that she was unable to file her application because she had unstable housing, that she was seeing a counsellor three times per week and felt suicidal. It is important to note that none of these reasons were referred to or otherwise supported by evidence, in Ms Johnston’s written submissions.

[15] I do not consider the explanations given by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. The Applicant admits that she knew there was a 21-day limit for applications and admits that she made no attempt to contact the Respondent herself to discuss her resignation or to explore if there was any alternative arrangement to her resignation.

[16] Further the Applicant did not make any inquiries to ascertain whether her support person even contacted the Respondent. For the additional reasons offered at the hearing, the Applicant provided no medical evidence of a mental health condition, or any evidence in support of her alleged challenges that prevented her from filing the application on time.

[17] The Respondent also raised objection to the additional submissions made by the Applicant on the basis that were not in her outline of submissions, therefore it had no capacity to respond to the submissions other than deny any knowledge of any medical condition.

[18] The absence of an acceptable explanation and the absence of supportive evidence weighs against a conclusion that there are exceptional circumstances to support an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[19] The Applicant was aware of the date that the termination of employment took effect because she emailed her resignation to the Respondent. Therefore, she had the benefit of a full period of 21 days to lodge the unfair dismissal application. In the circumstances, this consideration does not weigh in the Applicant’s favour.

Action taken to dispute the dismissal

[20] The Applicant submitted that she did not dispute her resignation. She submits she understood that if she was unable to wear a mask that she could not work. Her own resignation letter confirms her decision to resign and does not challenge the employer’s direction to wear a mask nor does the correspondence suggest that she had reservations about her resignation. This consideration does not weigh in favour of the Applicant.

Prejudice to the employer

[21] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application concern whether Miss Johnston informed the Respondent that she had a mental health condition that prevented her from wearing the mask. She also submits that they were aware of her mental health condition prior to the direction to wear the mask. Further, she submits that when she explained her reasons for not wearing the mask she offered to provide a medical certificate.

[23] The Respondent disputes the Applicant’s submissions and submits that all crew were informed on 18 July 2020, that face masks would be compulsory. The shift manager reported to Mr Laurence, the General Manager, that the Applicant advised him that she would rather quit than wear a mask. On 19 July 2020, Mr Bennett, Restaurant Manager, called the Applicant to discuss her refusal to wear the mask and to explain the reasons for the policy. Mr Bennett submits that the she advised him that she would not wear the mask and would rather quit. He submits that he asked her why, and in response she responded that she believed the virus was not a real threat, there were no cases near Benalla, that the mask is ridiculous and that it won’t do anything.

[24] A further meeting between the Applicant, Mr Bennett and another Manager occurred on 21 April 2020, the day before her shift when the mask had to be worn. Mr Bennett submits that despite the health directive, she again refused to wear the mask at work, and she admitted that mask made her felt anxious, so he gave her the mask to try at home in preparation of her shift. Mr Bennett denies that she offered to provide a medical certificate. Instead of turning up to work the next day, Ms Johnston tendered her resignation.

[25] The Respondent submits that there was no evidence or reasons to believe that the Applicant had a mental health condition and further submits that had she provided evidence of a condition, it would not have insisted on her wearing the mask or resign. The Respondent submits that during their last meeting, it advised the Applicant that she may reapply for a position and be reemployed after the COVID-19 pandemic safety requirements were lifted should she choose not to work wearing a mask. Miss Johnston admitted during the hearing that the Respondent could have stood her down on JobKeeper payments until the COVID-19 pandemic requirements were lifted.

[26] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. For the Respondent, both Mr Laurence and Mr Bennett resolutely confirmed the conversations with the Applicant, and there is no reason to question their submissions. While Miss Johnston denied the conversation described by the Respondent, her submissions were not as convincing. However, while I do not consider that the Applicant presented an arguable case, I am mindful that should she genuinely have a mental health condition, and the evidence, if tested, supports a condition that prevents the wearing of the mask, and taking into account the contested accounts of the conversations, I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[28] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

Miss Stephanie Johnston for herself

Mr Matthew Laurence for the Respondent

Hearing details:

2020

Melbourne (by Microsoft Teams)

28 September

Printed by authority of the Commonwealth Government Printer

<PR723202>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].