Stuart Tyrrell & Michael Fotia v GTS Freight Management
[2022] FWC 610
| [2022] FWC 610 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stuart Tyrrell
&
Michael Fotia
v
GTS Freight Management
(U2021/11779 & U2021/11782)
| COMMISSIONER YILMAZ | MELBOURNE, 18 MARCH 2022 |
Application for an unfair dismissal remedy Application for an unfair dismissal remedy
This decision concerns applications filed by Messrs Stuart Tyrrell and Michael Fotia (Applicants) for unfair dismissal remedies pursuant to s.394 of the Fair Work Act 2009 (Act).
The Applicants were both employed as Yard Logistics Labourers with GTS Freight Management Pty Ltd (the Respondent), a family-owned transport distributor based in Mildura, Victoria. Both Applicants failed to comply with the employer’s request for covid vaccination status by the due date to comply with the Victorian Government’s vaccine mandate. Both Applicants were dismissed on 28 October 2021 with notice of termination given. The Applicants filed the unfair dismissal application on 17 December 2021. Both applications were made outside the 21 day statutory timeframe.
Ms Renee Steel, an independent consultant, filed the applications and states that the lateness is solely her fault and that the Applicants are blameless for the delay. She submits that her error was due to filing of the application on the wrong form despite the Applicants’ instructions to file unfair dismissal claims.
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 date the dismissal “took effect” is when notice of the dismissal is communicated to the employee and if notice is given, then the dismissal takes effect at the end of the notice period. The letter of termination of employment from GTS to Mr Fotia stipulates that notice expires on 18 November 2021. The final payslip tendered in evidence supports the 3 weeks’ notice given, as annual leave accrued until 18 November 2021. The letter of termination of employment to Mr Tyrrell stipulates a notice period that expires on 11 November 2021. While the letter of termination of employment provides 2 weeks’ notice it does state that final payment would be made on 17 November 2021. No final payslip was tendered in evidence for Mr Tyrrell.
Mr Tyrrell’s application was filed 15 days late as the deadline to file was midnight on 2 December 2021. Mr Fotia’s application was filed 8 days late, the deadline being midnight 9 December 2021. The Applicants ask the Commission to grant a further period for the applications to be made under s.394(3).
The Respondent opposes the extension of time application and submits that the Applicants have failed to demonstrate any exceptional circumstances to warrant an extension of time.
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]
The requirement that there be exceptional circumstances before time can be extended under s. 394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) 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) 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.
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 Applications.
Reason for the delay
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]
Ms Steel submits that the delay is due to her originally completing the application forms on behalf of the Applicants using the wrong form, and she did not realise the error until the day of the conciliation conference on 17 December 2021. On 17 December 2021 after the parties failed to reach agreement on settlement terms at the conciliation conference, Ms Steel withdrew the general protection applications and filed the unfair dismissal applications.
Ms Steel submits that the general protection applications were evident that the intent was to file unfair dismissal applications. She further submits that the Applicants are blameless for the delay and that she accepts full responsibility for the error as their instructions to her were clear, but she simply completed the wrong form. She asks the Commission to grant the extension and not disadvantage the Applicants for her error.[4]
When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant’s representative, it is relevant to consider whether the Applicant caused or contributed to the representative’s error, whether by act or omission.
During the hearing both Messrs Tyrrell and Fotia were asked whether they read the applications that were allegedly filed on the wrong form. Mr Tyrrell admitted that he did read the application and noted that it was a general protection application. Mr Fotia stated that he had a “squizz” at the form but felt reassured that Ms Steel had the matter in hand and that he was “reassured that everything was okay”. When asked whether he had read the application form prepared by Ms Steel, Mr Fotia replied, “I read what was emailed to me and signed it. Simple as that”.
The responses from the Applicants do show that they did contribute to the alleged error in filing a general protections instead of an unfair dismissal application and as a consequence the delay in filing the unfair dismissal application. Neither Applicant alerted their Representative that the wrong form was completed, if in fact, they had intended to file an unfair dismissal application. If one takes into account the communication from the Commission to the parties, neither applicant nor Ms Steel alerted the Commission of an alleged error after:
· Mr Tyrrell was informed that his first general protections application (C2021/7330) involving dismissal was filed prior to the dismissal taking effect. The Applicant withdrew this application on 4 November 2021.
· Mr Tyrell then filed a further general protection application (C2021/7600) which Ms Steel and the Applicant allege was intended to be an unfair dismissal but filed on the wrong form. Ms Steel submits that she completed the form. The form shows that it was signed by Mr Tyrrell and the Applicant’s Representative was noted as Sheree Tyrrell. The form also identifies the alleged contraventions of the general protections provisions.
· Mr Fotia filed a general protection application (C2021/7634). This form states that the Applicant’s Representative was Rose Mengler and was signed by the Applicant. This Form also identifies the alleged contraventions of the general protections provisions of the Act.
· The Applicants were served with the Form F8A from GTS, which is titled “Response to General Protections Application”. A quick read of the Forms F8A is clear that it is in response to a Form F8, the Respondent noted its specific objection to the application on the basis that “immunization status does not constitute a workplace right under the General Protections provisions under the Fair Work Act 2009”.[5]
· General protections applications are marked ‘C’ in the matter number, while unfair dismissal applications are given a ‘U’. Ms Steel as an independent consultant acting as a representative in this jurisdiction should have been aware of this simple numbering system adopted by the Commission which is evident in all correspondence from the Commission including listings.
· Ms Steel tendered in evidence the General Protections Guide along with the General Protections applications, which further confirms her submissions that she is awareness of the difference between the two types of applications.
· Ms Steel sent correspondence to the Commission advising that she intended to represent the Applicants in the general protections conciliation conference. She was informed that she could not represent the Applicants as she was not listed as their Representative. Ms Steel subsequently sent through a Form F53 on 10 December 2021, a week before the scheduled conference, notifying the Commission that she is a paid agent to represent the Applicants, and in completing this form she is required to include the matter code and the date of conciliation.
· All correspondence to the Commission was addressed to and from the [email protected], this is the acronym for the General Protections Team.
· The Notice of Listing confirms the type of application in the subject heading, refers to the relevant section of the Act and matter number which was listed with a ‘C’. The conference details also refers Applicants to the general protections provisions on the Commission’s website to assist with preparation of the conference.
When one considers the detail required to complete a general protection or unfair dismissal application together with the level of correspondence in relation to the general protections applications, either the Applicants totally omitted to pay due attention to their application, or intended to file a general protection application. Further, in relation to Ms Steel’s submissions that she is responsible for the error, from an objective assessment her reasons for the delay is implausible. It is noticeable from Ms Steel’s submissions in this application, that she lacks technical and practical competency in this jurisdiction despite holding herself out as an independent consultant experienced in human resources and in this jurisdiction
I do not accept the submissions that the delay is due to Representative error nor that the Applicants are blameless, and I do not consider the reasons for the delay hold any weight in favour of an extension of time. While the reason for the delay is relevant to the consideration of exceptional circumstances in an extension of time application, the balance of the considerations pursuant to s.394 (3) (b) to (f) must be considered.
Whether the person first became aware of the dismissal after it had taken effect
Both Applicants were aware of the dismissal, they received the letter of termination both by email and registered post. The letter of termination dated 28 October 2021, was titled “Termination of your Employment”, and stated that:
“1…in accordance with the public health order announced by the premier and confirmed by the Chief Health Officer, on 5th October 2021, GTS Freight Management Pty Ltd (GTS) wrote all staff with a formal written direction.
2. The Direction required you to provide certain information about your Covid-19 vaccination status (including details of any relevant medical exemption) prior to the Friday 15th October deadline.
3. To date, you have failed to provide the information set out in the written direction. GTS is now obliged to ensure you do not perform work for us outside of your ordinary place of residence. This means you cannot attend our worksite in order to perform your role.
4. GTS raised your failure to provide information in accordance with the direction in a letter dated 19th October 2021 (“Show Cause Letter”). The letter provided by GTS as a result of your failure to comply, it was considering taking disciplinary action, up to and including the termination of your employment. You were given an opportunity to respond.
5. In response to the matters set out in the Show Cause Letter, you have confirmed that you remain unvaccinated and are ot able to provide a medical exemption, you have also confirmed that you don’t believe the direction are lawful.
6. GTS has carefully considered all of the circumstances, including the matters you raised in your letter dated 20th October 2021 and also discussed in the meeting on the 27th October 2021 response to the Show cause Letter.
7. Please be advised GTS has decided to terminate your employment, due to:
a) Your ongoing failure to follow a lawful and reasonable direction in circumstances which are inconsistent with the employee/ employer relationship; and
b) Your failure to follow the direction also meaning you are no longer able to meet the inherent requirements of your role, as you are now prohibited from attending GTS’s premises for the purpose s of work, and there are no alterative ways your role can be performed…”
The correspondence referred to in the letter of termination was also tendered by the parties and shows the process undertaken by the Respondent and the correspondence expressed the consequences should the Applicants not comply with the employer’s directions.
It is not contested whether that the Applicants and Ms Steel were aware of the 21 day timeframe to lodge an unfair dismissal, and their awareness of the deadline that applied from the date the dismissal took effect as reflected in the letter of termination of employment. The evidence in this regard does not render this consideration in the Applicants’ favour.
Action taken to dispute the dismissal
The Applicants and Ms Steel confirm that no action to dispute the dismissal was taken other than filing the initial general protections applications and the current unfair dismissal application. However, prior to the termination of employment both Applicants responded to the Show Cause Letter which clearly indicated that they did not consider the direction to show Covid-19 immunisation status was lawful or reasonable, that the requirement of having a Covid-19 vaccination was not an inherent requirement of the job, that Australia does not have a mandatory vaccination policy and to insist on vaccination was coercion and should GTS dismiss the Applicants, they would “challenge the termination through the Fair Work Ombudsman for unlawful dismissal, discrimination and coercion.”[6]
It is reasonable to conclude from this response by the Applicants that the Respondent had expected an application challenging the dismissal. The general protections application is consistent with the language expressed in the response to the Show Cause Letter, however, withdrawing the general protections applications and filing an unfair dismissal application was unlikely to be foreshadowed. The Respondent submits that there was no indication that the Applicants intended to withdraw the general protections applications and file unfair dismissal applications. This point was not contested by the Applicants. On balance this consideration does not weigh in favour of the Applicants.
Prejudice to the employer
Ms Steel contends that the late application does not cause the Respondent any disadvantage or unfairness. She contends that GTS experienced no financial impact from the late application and refers to steps taken by GTS to back fill the positions.
GTS submit that no prejudice from the lateness of the application but does submit that it experienced disadvantage or unfairness. In particular, GTS refer to the general protection applications filed and its consideration of and responses to them (3 in total), including participation in a conciliation conference. The Respondent states that the failure to result the conciliation and then deal with an extension of time which in its view has no exceptional circumstances to justify an extension of time, has required the business to allocate resources due to the alleged errors of the Applicants’ Agent.
I do accept that the absence of competence of the Agent in this matter has inconvenienced the Respondent, and is unfair that it engaged in the conciliation process, and without notice was served with a further application. However, this inconvenience is not sufficient to justify prejudice or disadvantage. Further, the authorities provide that the mere absence of prejudice is insufficient to grant an extension of time.[7] This consideration does not weigh in favour of the Applicants.
Merits of the application
Ms Steel contends that the circumstances of the dismissal is compelling for a remedy pursuant to s.394 of the Act for the following reasons:
· The Applicants have basic employment rights under the contract of employment, the Act, the Road Transport and Distribution Award 2020, common law and Victorian Charter of Human Rights.
· The Applicants were full time employees and the actions of GTS were inconsistent with their minimum employment conditions.
· The Applicants responded to the request to show vaccination status contrary to the statements of the Respondent.
· The Applicants repeatedly stated they were ready willing and able to perform their work.
· They promptly responded to the Show Cause Letter with valid concerns and questions but were not afforded the opportunity to discuss the changes to their terms of employment.
· GTS’ directions amounted to coercion, a breach of Division 3 of the Act (s.343 Coercion and s.344 undue influence or pressure)
· The Applicants considered their status as employees was a tier 4 worker “per the Fair Work Covid-19 Guide”, meaning they have minimal face to face contact as part of their duties.
· GTS breached the consultation provisions contained in clause 30 of the Road Transport and Distribution Award 2020 and change process as provided by s.35 of the Occupational Health and Safety Act.
· GTS incorrectly relied on a time limited mandate to state that vaccination is an inherent requirement and despite it not having a company policy.
· GTS failed to enable the taking of sick leave in breach of schedule x of the industrial instrument.
· GTS failed to comply with privacy law and various Charters, nor provided the Applicants an opportunity to suggest alternatives to dismissal.
· The Applicants were summarily dismissed, thus being denied National Employment Standards and because of the dismissal the Applicants suffered personally and financial hardship.[8]
GTS submit that it is required to collect vaccination information to satisfy the requirements of the Victorian Government Covid-19 Mandatory Vaccination (Workers) Direction, now the Pandemic Covid-19 Mandatory Vaccination (Specified Workers) Order 2022. The Orders impose an obligation on GTS to collect information concerning vaccination status and if a worker is unvaccinated, it must not permit work outside the ordinary place of residence unless an exemption applies. GTS submit that the Applicants did not provide any details confirming that they have met the vaccination requirements nor the required exemption and the nature of their work meant that they could not perform their duties from home. The Victorian Government’s vaccination directive resulted in the requirement to be vaccinated to be an inherent requirement of the job.
GTS submit that both applicants were stood down without pay from 15 October 2021, after they failed to comply with the lawful direction to provide the necessary information regarding vaccination status by that date. GTS submit that failure to comply with the direction meant the Applicants could not perform any duties from 22 October 2021.
GTS submit it provided both Applicants information on the Government’s mandate, they were provided with a Show Cause Letter dated 19 October 2021, a meeting was held with the Applicants and their support person, and it also considered their written response to the Show Cause Letter before the Applicants were dismissed with notice as they could not perform the inherent requirements of the job.
An extension of time is not intended to test the merit of the application, but it is a consideration to weigh up together with each of the provisions of s.394(3) when considering whether to grant an extension of time.
The Victorian Government issued Directions which the Respondent is required to comply with, failure to comply, will result in serious financial penalties. The Respondent implemented the necessary inquiries of the Applicants to comply with its obligations, and both did not present any evidence that they were vaccinated or intended to be vaccinated. Further the Applicants did not present any evidence to their employer that they had a medical exemption from vaccination.
The Applicants’ submissions contain error including that the Respondent dismissed the Applicants summarily, this is undeniably contested with the letter of termination and Mr Fotia’s payslip. The Applicants suggest the time limit of the Government’s mandate means there is no mandatory obligation on the Respondent to direct the compliance of submitting the information it sought. This submission does not take into account the status of the Mandates imposed on the Respondent. The Applicants also make numerous other allegations that have not been substantiated and lack detail. On the material before me on balance I cannot conclude that the merits favour the Applicants. On this basis I do not find that this consideration weighs in favour of the Applicants.
Based on the evidence tendered the merits of the applications are not compelling and not in favour of the application for an extension of time.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. The Applicants submit that the respondents’ decision to dismissal them was unfair for various reasons but also submit that it did not have a vaccination wide company policy. To support its position they tendered in evidence an advertisement for drivers which did not contain any details regarding the requirement to be vaccinated. These submissions did not address this consideration sufficiently, and in the absence of any evidence regarding this consideration I consider this to be a neutral consideration in the present matter.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicants, 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.
As 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 applications for an unfair dismissal remedy must be dismissed.
COMMISSIONER
Appearances:
Ms R. Steel for the Applicants
Ms T. Smyth for the Respondent
Hearing details:
22 February 2022
Melbourne (by video)
[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]
[4] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [30].
[5] Form F8A
[6] Response to Show Cause Letter dated 20 October 2021 by Messrs Tyrrell and Fotia.
[7] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.
[8] Applicants outline of argument at Q7.
Printed by authority of the Commonwealth Government Printer
<PR739456>
0
4
0