Suzana Jablanovic v Goodstart Early Learning
[2022] FWC 584
| [2022] FWC 584 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Suzana Jablanovic
v
Goodstart Early Learning
(U2022/1707)
| COMMISSIONER HAMPTON | ADELAIDE, 29 MARCH 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – 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 Suzana Jablanovic (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). Ms Jablanovic is seeking compensation.
The termination of Ms Jablanovic’s employment with Goodstart Early Learning (Respondent or Goodstart) was communicated by letter emailed to her on 7 January 2022. It is common ground that the dismissal was effective on that date. The dismissal took place in the context of the Respondent’s policy that required Ms Jablanovic be vaccinated against COVID-19 or have a medical exemption in order to continue her employment (the Policy). Ms Jablanovic was not vaccinated and did not hold a medical exemption at that time. I observe that although not referenced at the time of dismissal, in proceedings before the Commission Goodstart also relied upon the impact of the Emergency Management (Education and Early Childhood Settings Vaccination No 2) (COVID-19) Direction 2021 (SA)[1] (the Direction) which it contends applied to the workplace and produced, in effect, the same requirements as its own policy.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 8 February 2022.
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). Adopting 7 January 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 28 January 2022.[2] The application was therefore filed 11 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 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. Ms Jablanovic appeared for herself and Ms Dyer, internal legal counsel, represented the Respondent.
As Ms Jablanovic was not represented, I assisted with the conduct of the hearing, gave latitude as to the form of her evidence and submissions, facilitated submissions on the relevant statutory considerations, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission.[4]
Ms Jablanovic provided a witness statement[5] and gave sworn evidence on her own behalf. The respondent did not call any witness evidence and relied upon its written submissions filed in the Commission and oral submissions given at the hearing.
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 Ms Jablanovic to generally have been given openly and honestly. I did however find that Ms Jablanovic’s explanation about the timing of when certain steps were taken after the dismissal to have been somewhat vague, and her evidence about the incapacity to navigate and complete the unfair dismissal application earlier than this occurred, not entirely convincing. That is, although I accept that the awareness of and capability to use website-based information and systems varies, I found Ms Jablanovic to be an intelligent person. I also note that Ms Jablanovic has stated that she holds administration skills and that her post dismissal employment is in an administrative role.
I also formed the distinct impression that when Ms Jablanovic was seeking advice from the Commission’s helpline, this was fundamentally about the legality of the vaccination requirements themselves, and not about how to lodge an unfair dismissal, which the staff of the Commission are fully capable of facilitating.
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 Applicant’s evidence.
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
At the time of the events leading to this application, Ms Jablanovic was employed as an Educator in one of the Early Learning Centres conducted by Goodstart in Adelaide. Ms Jablanovic had been engaged on a series of contracts since October 2015. The most recent contract[6] was as a “fixed-term” part-time employee with indicative working hours of 25 per week.
On 27 September 2021, the Chief Executive Officer of Goodstart advised[7] all employees in its national operations, including the Applicant, that the Respondent was introducing a “mandatory COVID-19 vaccination policy for everyone”. This required that employees, other than those engaged in New South Wales and Victoria where different arrangements applied, to have had their first vaccination by 28 October 2021 and be fully vaccinated by 29 November 2021.
On 17 October 2021, Ms Jablanovic, in effect, responded[8] to the CEO’s advice and requirement and indicated amongst other matters that:
· The requirement was creating anxiety and stress for her given her personal circumstances and recent medical history (details of which were provided to Goodstart;
· She was currently seeking advice about the vaccinations and whether or not it was appropriate given her personal medical circumstances; and
· She wished to be fully informed before going ahead (with a vaccine).
Ms Jablanovic also raised a series of questions and sought a medical and legal indemnity from her employer, in the event that she ultimately was vaccinated.
On 20 October 2021, Ms Jablanovic sought[9] a medical exemption from the vaccination requirements.
On 21 October 2021, Goodstart acknowledged[10] the medical exemption request, provided links to the websites about medial exemptions and confirmed that a proper completed medial exemption form or vaccination trial registration would be required, reinforced the requirement that in the absence of an exemption that vaccination was required, and provided details of publicly available information and assistance on the issue.
On 2 November 2021, Ms Jablanovic sought[11] a response from Goodstart as to what would happen with her employment given her circumstances and expressed various concerns including about the “silent treatment” towards Educators.
On 14 November 2021, Goodstart advised[12] Ms Jablanovic that her request for a vaccination request had been denied on the basis that satisfactory medical evidence had not been provided. Goodstart also advised that it was now necessary for the Applicant to comply with the vaccination policy and to attend a medical appointment it had organised to determine the extent of any risks to her.
On 18 November 2021, a medical report[13] was provided to Goodstart indicating that the Doctor did not consider that Ms Jablanovic’s medical condition would place her at increased risk to adverse reaction to the Covid-19 vaccination.
On 23 November 2021, Ms Jablanovic sought[14] clarification about her employment status given that she had been informed that she would be removed from access to the relevant Goodstart systems and not be rostered on as of 29 November 2021. Ms Jablanovic also again sought further information about the justification for the vaccination requirement.
On 30 November 2021, Ms Jablanovic expressed[15] her disappointment at being locked out of access to the email system and expressed concerns about the loss of access to the payroll system, and to payslips in particular. Ms Jablanovic also indicated that she would expect a reply ASAP and that legal action would be taken given her treatment by Goodstart.
On 1 December 2021, Goodstart provided Ms Jablanovic a show case letter[16] setting out the history of the matter and seeking a response as to why she should not be dismissed given the “noncompliance” with the Covid-19 vaccination requirement.
On 7 December 2021, Ms Jablanovic provided a comprehensive and wide-ranging response[17] to the show cause letter and also raised related concerns about her treatment by the Respondent.
On 24 December 2021, Goodstart advised[18] Ms Jablanovic that it was providing more time for her to comply with the vaccination policy and that it would not take any final action to terminate her employment until 7 January 2022.
On 30 December 2021, Goodstart formally advised[19] Ms Jablanovic that her request for a vaccination exemption had been denied. This letter also reinforced the need for the Applicant to comply with the policy and become vaccinated.
On 7 January 2022, Goodstart communicated the termination of Ms Jablanovic employment by way of correspondence in the following terms:
“… …
Dear Suzana
I am writing regarding the termination of your employment with Goodstart.
On 1 December 2021 you were asked to show cause as to why your employment should not be terminated on the basis that you do not satisfy an ongoing condition of your employment.
I note that you did provide a written response as requested.
We have taken the time to consider all of the information supplied by you, your exemption request, and all responses (both written and verbal) regarding this matter. We consider that by not being vaccinated against COVID-19, you fail to satisfy an ongoing condition of your employment, and that your employment should end as a result.
The relevant background to the termination of your employment is as follows.
1. On 27 September 2021, you were notified that you must be vaccinated against COVID-19 in accordance with BM-10 – Infectious Disease and Immunisation Requirement.
2. On 7 December 2021, you sought an exemption to the vaccination requirement. Your request for an exemption was considered by the vaccination panel. On 30 December 2021, you were informed that your request for an exemption was denied and you were asked to provide evidence that you had received the COVID-19 vaccination.
3. On 1 December 2021, as you still had not provided evidence of vaccination, we wrote to you regarding the importance of the COVID-19 vaccine in our workplace and the consequences for failing to comply with the vaccination requirement.
4. We offered to meet with you on 1 December 2021 ,to discuss in greater detail the importance of the COVID-19 vaccine in our workplace and the consequences for failing to comply with the vaccination requirement.
5. You were then asked to show cause as to why your employment should not terminate, which we have taken into account.
Accordingly, your employment will end today. Your notice period, based on your length of service, is four (4) weeks. You will be paid your notice in lieu of working. You will also be paid your accrued entitlements and any outstanding pay for up to, and including, your last day of employment.
Please Note: Your final payment summary will be forwarded to you. Should you require a Centrelink Separation Certificate or a Certificate of Service, please contact the Solution Centre on xxxx xxx xxx and this will be provided to you after your final pay has been processed.
Goodstart has not reached this decision lightly and we sincerely wish you all the best for the future. If there is a Goodstart role that interests you in the future, and you are able to comply with Goodstart’s vaccination requirements, you would be welcome to apply.
I take this opportunity to encourage you to contact our Employee Assistance Provider, if you need any additional support. You can contact Lifeworks at any time 24/7 on xxxx xxx xxx. This service will be available to you for free for a period of up to 3 months post your employment ending.
Please contact me should you have any queries in relation to this matter.
Yours faithfully
… …”.[20]
Within about 5 days[21] of being advised of her termination, Ms Jablanovic contacted what I understand was the Fair Work Ombudsman (FWO) about her circumstances, seeking information and advice. Shortly thereafter, Ms Jablanovic contacted the Tribunal (the Commission) as advised by the FWO.
Ms Jablanovic ’s evidence was that she was not able to get a concrete answer from the FWO or the Commission and was informed that she should take legal advice. For reasons set out earlier, I find that Ms Jablanovic was fundamentally seeking advice about whether the vaccination requirements were valid and lawful. I do not accept that Ms Jablanovic was seeking at that point to gain specific information from the Commission about how to contest her dismissal. I observe that a person seeking to do so could readily be directed to the actual application form or an application could be taken over the phone by the Commission.
Ms Jablanovic then undertook some research of her own and on the next day or so found out that she could make an unfair dismissal application. Ms Jablanovic contacted a lawyer at some point but did not seek legal advice given what she understood would be the costs involved.
Ms Jablanovic gave evidence that she went onto the Commission’s website soon thereafter but could not find the form to make an unfair dismissal application. At some point, probably 21 January 2022,[22] Ms Jablanovic obtained some advice from friends who sent her the correct form. Ms Jablanovic also indicated that it took a few weeks to get her head around the matter and sought some further assistance from friends to complete the form.
Ms Jablanovic was also associated with a coroner’s court proceeding at some stages during this period. In addition, Ms Jablanovic gave evidence that her stress levels, and the need to find alternative employment, were factors that influenced when the application was ultimately lodged. The evidence before the Commission does not permit me to make findings about the extent to which these factors influenced the timing. In any event, there is little specific evidence to support any notion that these prevented Ms Jablanovic from ascertain her rights or making the application earlier than she did.
Ms Jablanovic lodged this application on 8 February 2022.
Should an extension of time be granted?
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 stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[23] 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.[24]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[25] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the 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 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.[26] I now consider these matters in the context of the application currently before the Commission.
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 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.[27]
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.[28]
Ms Jablanovic principally relies upon the following propositions[29] as reasons for the delay:
• “I have been dealing with a lot of emotional stress, losing my job, the uncertainty of my future, having to look for a new job, starting a new job in another field after many years of working in Child Care.”
· “I have had my father’s coroners court case which has brought stress and emotion reliving everything that has previously happened.”
· “The date of dismissal was the 7th of January 2022. That was my Christmas day and I felt that it was an inappropriate time to email an employer their termination letter.”
· “I contacted Fair Work (FWO) for assistance. They advised me to contact the Tribunal. I was constantly told the same information and sent in circles, which was that the information I needed and the form were both on the Fair Work site.”
· “After repetitive calls to Fair work and the tribunal where no one could give me a concrete answer as to the lawfulness of the covid vaccine mandate as a requirement within my workplace, the only answer they could give me was to refer me to a free legal aid service.”
· “I struggled to find what I needed on the Fair Work site as I find Government sites not being user friendly.”
As set out earlier, Ms Jablanovic also relied upon the impact of the stress upon her of the dismissal and her efforts to seek alternative employment. I have made findings about the evidence touching upon the explanation for the delay earlier in this Decision and also taken into account all of the propositions outlined above when making the overall assessment required by the Act.
Given those findings, and for reasons that follow, I do not consider that Ms Jablanovic has provided a credible or satisfactory explanation for most of the period of the delay in making the unfair dismissal application.
I do accept elements of Ms Jablanovic ’s explanation. This includes that were some external factors impacting upon the timing of the lodgement. I also accept that the Ms Jablanovic was stressed as a result of being dismissed. However, the evidence before the Commission does not provide a satisfactory or reasonable explanation for much of the delay and do not represent factors supporting a finding as to the necessary circumstances required by s.394(3) of the Act.
The delay in this matter is relatively 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 Jablanovic was aware of her dismissal on 7 January 2022 when she received the letter of termination and was on notice that it was likely to occur. This means that she had the full 21-day period to make the application. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Ms Jablanovic did not take any action to dispute her termination other than ultimately lodging this application.
This consideration does not support a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Nothing was put the Commission in relation to this consideration.
This weighs in favour of the Applicant I attribute it appropriate weight[30] in the consideration of whether there are exceptional circumstances.
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.[31]
Ms Jablanovic raises several issues in her application regarding the fairness of the dismissal, which include:
· The policy represented a major change under the relevant enterprise agreement, it was required to consult on the terms and implementation of that policy, which did not occur.
· Being vaccinated should be an employee’s individual choice.
· Numerous questions were raised seeking information and responses, and these were not addressed by Goodstart. This included a suggestion of working from home doing administrative work.
· The communications from Goodstart were poor and she was locked out of emails and payslips and not officially informed that she was being stood down or told that she was being dismissed.
Goodstart’s response relies upon various decisions of the Commission, including some relating to its own organisation,[32] which have found that its vaccination policy represented the basis for a lawful and reasonable instruction. It also relied upon the impact of the Direction upon the inability for Ms Jablanovic to continue to work in the Centre without being vaccinated against Covid-19.
I would need more evidence than is presently before the Commission to determine the impact of the Enterprise Agreement on the implementation of the Policy and there is little before the Commission about any steps that Goodstart took prior to its introduction. This may be important to determine whether the obligation to comply with the Policy was a lawful and reasonable direction.[33]
Based upon the limited evidence that is before the Commission going to merit, and the Court and Tribunal decisions to date, it is likely that the coverage of the Direction would be critical to the merits of this application. That is, if despite any deficiencies in the consultations and communication by Goodstart the Direction legally applied to the workplace, this may mean that Ms Jablanovic ’s capacity to undertake work in her workplace would have been removed in any event. I would also need to hear evidence about the capacity to undertake work from home; however, this appears to be little scope for such unless meaningful administration work could be found.
For present purposes , I consider that whilst the Respondent appears to have a strong case on merit, the Applicant has at least an arguable case on some elements of her case, depending upon the ultimate evidence. 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.[34] Although the Respondent referred to the fact that other employees who had declined to be vaccinated had been dismissed and that the Applicant was not in a unique or special circumstance, each case must be determined on its own facts. The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the 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), and an extension of time has not been granted, the application has not been made as required by the Act.
On that basis it is appropriate to dismiss the application and an Order[35] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
S Jablanovic, the Applicant on her own behalf.
A Dyer with J Rowe for Goodstart Early Learning, the Respondent.
Hearing details:
2022
March 15
Video Hearing.
[1] Issued by the Commissioner of Police being the State Coordinator pursuant to s.14 of 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 Act.
[4] See also the discussion of some of the relevant considerations for a similar Tribunal in Minogue v HREOC [1999] FCA 85.
[5] Exhibit 1.
[6] Exhibit 2.
[7] Exhibit 3.
[8] Exhibit 4.
[9] Exhibit 5.
[10] Exhibit 6.
[11] Exhibit 7.
[12] Exhibit 8.
[13] Exhibit 9.
[14] Exhibit 10.
[15] Exhibit 11.
[16] Exhibit 12.
[17] Exhibit 14.
[18] Exhibit 15.
[19] Exhibit 13.
[20] Exhibit 16.
[21] Transcript PN81.
[22] PN81.
[23] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[24] Ibid.
[25] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[26] 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].
[27] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[28] Ibid.
[29] Applicant’s statement – exhibit 1.
[30] See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 to 300.
[31] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[32] Bou-Jamie Barber v Goodstart Early Learning[2021] FWC 2156.
[33] Construction, Forestry, Maritime, Mining and Energy Union, Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWC 6309 and the majority view in Jennifer Kimber v Sapphire Coast Community Aged Care Ltd[2021] FWCFB 6015.
[34] See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.
[35] PR739355.
Printed by authority of the Commonwealth Government Printer
<PR739354>
0
9
0