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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 584
Decision Date

CaseChat Overview and Summary

The case of Suzana Jablanovic v Goodstart Early Learning involves the applicant, Ms Jablanovic, seeking an unfair dismissal remedy against her former employer, Goodstart Early Learning, pursuant to section 394 of the Fair Work Act 2009. Ms Jablanovic's employment was terminated due to her failure to comply with the employer's COVID-19 vaccination policy. The applicant's unfair dismissal application was lodged 11 days past the 21-day statutory time limit, and she requested an extension of time for lodgement. The legal issues in this case include whether there were exceptional circumstances justifying the extension of time for the lodgement of the unfair dismissal application and the validity of the employer's COVID-19 vaccination policy.

The Fair Work Commission assessed the circumstances surrounding the delay in lodging the unfair dismissal application and determined that there were no exceptional circumstances justifying an extension of time. The Commission found that Ms Jablanovic's explanation for the delay was vague and not entirely convincing, and that she was aware of her dismissal on 7 January 2022, which gave her the full 21-day period to make the application. The merits of the application were considered but were not the primary focus, as the application was not made within the required time period. Consequently, the application for an unfair dismissal remedy was dismissed.

The final orders of the Fair Work Commission are as follows: (1) the application for an extension of time for the lodgement of the unfair dismissal application is dismissed; and (2) the unfair dismissal application is dismissed.

Orders