Sylvia Joyce O'Hearn v AGL Energy Limited
[2022] FWC 1485
•13 JUNE 2022
| [2022] FWC 1485 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sylvia Joyce O’Hearn
v
AGL Energy Limited
(U2022/3540)
| COMMISSIONER WILLIAMS | PERTH, 13 JUNE 2022 |
Application for an unfair dismissal remedy
Ms Sylvia O’Hearn (Ms O’Hearn or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The Respondent is AGL Energy Limited (the Respondent).
Ms O’Hearn’s application says she was notified of her dismissal on 28 February 2022 and it is not contested that her dismissal took effect on 1 March 2022. Her application was received by mail in the Fair Work Commission in Melbourne on 24 March 2022.
The application has been made more than 21 days after the dismissal took effect.
Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission ( the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Consequently, on 11 April 2022 the Commission’s staff wrote to the Applicant explaining the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.
The Applicant provided response on 13 April 2022.
The Respondent objects to the Applicant being granted an extension of time and has provided submissions in support of their position.
This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.
The Applicant’s reason for the delay
The material provided by the Applicant in response to the Commission’s request that she demonstrate there were exceptional circumstances satisfies the Commission that on 16 March 2022 the Applicant posted her application by Express Post to GPO Box X2206, Perth WA 6001. This is the correct GPO box number of the Commission in Perth. The envelope was however marked to the Fair Work Ombudsman.
The Express Post envelope containing the application was delivered on 24 March 2022 to GPO Box 1994 Melbourne, Victoria, 3001. This is the Melbourne GPO Box of the Commission.
What occurred in between, unbeknownst to the Applicant, was the automatic redirection of the Applicant’s mailed application from the Commission’s Perth GPO Box to the Commission’s Melbourne GPO Box. This occurred because the Commission’s Perth Registry had previously put in place arrangements for the ongoing redirection of mail as a Covid -19 precaution.
The tracking of the Applicant’s mail shows the redirection occurred in Perth on 17 March 2022.
I am satisfied that had the Applicant’s mailed application not been redirected it would, on the balance of probability, have been received in the Commission’s Perth office within 21 days of her dismissal taking effect.
The reason for all of the delay in this case was the redirection of the Applicant’s mail for which she was not responsible.
Consequently, I am satisfied that there was an acceptable reason for all of the delay in this case.
Did the Applicant first became aware of the dismissal after it had taken effect ?
The Applicant became aware of her dismissal before it took effect.
Prejudice to the employer (including prejudice caused by the delay)
The delay in making the application in this case will not prejudice the employer.
The merits of the application
Central to the reason for the Applicant’s dismissal was that the Western Australian Government had issued the Critical Infrastructure Worker (Restrictions on Access) and Booster Vaccination (Restrictions on Access) Directions (the Directions) which applied to both the Applicant and the Respondent.
In summary, the Directions provide for a prohibition on workers subject to the Directions attending the workplace who are not vaccinated. The Respondent was obliged to collect a record of their employees’ Covid 19 vaccination statuses and could not allow them in the workplace if they were not vaccinated.
In addition, the Respondent had in place a policy that required all employees and contractors to be fully vaccinated for Covid 19 by no later than 28 February 2022.
In brief, there ensued correspondence backwards and forwards between the Applicant and her employer and the Applicant at one point indicated she would receive the Novavax vaccine. Ultimately however, the Applicant did not provide evidence to the Respondent that she had been vaccinated as she was required and so, as she had been previously warned, she was determined by the Respondent to be unable to meet one of the inherent requirements of her role, that being to attend the workplace in person when required. Separately, she had had failed to comply with the Respondent’s lawful and reasonable direction to comply with the Respondent’s policy.
Consequently, the Respondent submits this was a valid reason for the Applicant’s dismissal.
The Applicant argues in her application that she had been working from home for the Respondent for an extended period and was in her opinion able to continue this indefinitely and so was no risk to customers or staff and so her dismissal was unfair.
The Commission’s role at this point is only to decide whether or not further time should be allowed for the Applicant to file her application so consequently the Commission does not undertake a full hearing of the merits of the case.
It is relevant that currently the Commission has a very large number of cases before it with a similar factual background to this matter. Those cases have in common with this matter that the employees are subject to a direction of the Western Australian Government which requires the employee to be vaccinated for Covid 19 to attend the workplace, which is a law the employee and the employer are bound to obey. The vast majority of those cases have been rejected by the Commission and the dismissal found not to be unfair.
In this matter the Applicant disputes the dismissal on the basis that she would not attend the workplace in person and could work remotely and could continue to do so indefinitely. The Respondent disputes this and in their submission states that the Applicant was required to and expected to attend the workplace as part of her role.
In the circumstances the Commission’s conclusion is that the Applicant’s case is weak and her chances of success if the matter went to hearing in court are quite low.
Fairness as between the person and other persons in a similar position
There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.
Conclusion
The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to file this application.
In this case, were it not for the Commission’s redirection of the Applicant’s mail, her application would have been made within the statutory timeframe. What occurred was beyond her control and I view as an exceptional circumstance.
Consequently, the Commission is empowered to extend time for the Applicant to make this application.
This is a case where the Commission should exercise its discretion in favour of the Applicant and so I will allow further time for this application to be made.
An order to that effect [PR742563] will now be issued.
Printed by authority of the Commonwealth Government Printer
<PR742564>
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