Tammie Lehner v Western Health
[2023] FWC 1171
•19 MAY 2023
| [2023] FWC 1171 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tammie Lehner
v
Western Health
(U2023/2798)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 19 MAY 2023 |
Application for an unfair dismissal remedy – application made outside of the time prescribed – whether there are exceptional circumstances – whether discretion to extend should be exercised – circumstances not exceptional – application dismissed.
Ms Tammie Lehner had been employed in the People and Culture Department of Djerriwarrh Health Services since 6 August 2007. That position was integrated into the People and Culture Department at Western Health following an amalgamation in or about 1 July 2021. Ms Lehner was dismissed by Western Health with effect on 28 February 2023. At that time Ms Lehner was attempting to return to work after a period of parental leave, which appears to have been complicated by the requirement to move work location from Bacchus Marsh to Footscray and the fact that Ms Lehner had not had any COVID-19 vaccinations. The relevant operative health order at the time prohibited (subject to limited exceptions) Western Health from allowing Ms Lehner to physically return to the workplace unless Ms Lehner provided evidence of her vaccination status.
According to Western Health the reason for Ms Lehner’s dismissal was that Ms Lehner was unable to fulfil the inherent requirements of her role as she remained unvaccinated against COVID-19. Ms Lehner contends that her dismissal was unfair, and she lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act) on 29 March 2023.
The time within which an application for an unfair dismissal remedy could be made, in Ms Lehner’s case, elapsed at the end of 21 March 2023. Ms Lehner’s application was lodged 8 days beyond the time prescribed. The parties accept that there are no relevant factual matters requiring determination which are in dispute insofar as the question of whether further time should be allowed for Ms Lehner to lodge an application. They consent to that issue being determined on the papers and in the circumstances, I consider that course is appropriate.
The factual chronology which follows is not in contest. As already noted, Ms Lehner commenced employment on 6 August 2007. By correspondence dated 28 February 2023, Western Health notified Ms Lehner that her employment was terminated, effective close of business 28 February 2023, because she could not fulfil the inherent requirements of her role as she remained unvaccinated against COVID-19 – vaccination being an ongoing requirement for all employees working on-site at a healthcare facility.
Ms Lehner says that she contacted the Fair Work Ombudsman (FWO) on 8 March 2023 regarding her termination and not receiving her entitlements. Ms Lehner followed up with the FWO on 17 March 2023 and was sent an email confirming that her enquiry was sent to the FWO Assessment team and that she would receive a call from the FWO. Ms Lehner says that on 23 March 2023 she received an email from the FWO which included the following:
“…
In relation to unfair dismissal the appropriate agency is the Fair Work Commission who have jurisdiction over this. Applications need to be made within 21 days from termination so unfortunately that time has lapsed in your case. You are still able to pursue this matter through your own independent legal advice so you may want to consider that.
…”
As noted above, the unfair dismissal remedy application was lodged on 29 March 2023 - 6 days after the FWO email.
The Commission may allow a further period within which an unfair dismissal remedy application may be lodged but the power is only exercisable if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s 394(3). The expression “exceptional circumstances” is not defined in the Act, but it is well established that the expression describes circumstances that are out of the ordinary or unusual or special or uncommon. Circumstances need not be unique, or unprecedented, or even very rare. Exceptional circumstances might amount to a single event which is exceptional, or a combination of factors which, individually, are unexceptional but which, when combined or viewed together, persuade the Commission that the circumstances are exceptional.
In assessing whether there are exceptional circumstances the following matters must be considered: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position. Each matter needs to be considered, assessed, and assigned appropriate weight having regard to the evidence about each matter.
The Act does not specify what reason or reasons for delay might favour the granting of 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 the circumstances must be considered. The period of the delay with which the explanation is concerned is the period commencing immediately after the time for lodging an application has expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect may be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation and may inform the weight that is attached to the reason for the delay.
Ms Lehner says that she thought she had contacted and made a claim with the correct agency on 8 March 2023, and had she known or been told that she had to contact the Commission about her dismissal she would have done so. Ms Lehner says that it was the incorrect information from the FWO which caused her to delay making the application. Ms Lehner says that she thought her termination was not “lawfully correct” as her employer had not paid her entitlements. She says that as a layperson she had limited knowledge of the available legal remedies following the termination of her employment. Ms Lehner provided no explanation for the 6-day delay in lodging the application once she discovered (as the FWO email revealed) that the appropriate agency to deal with her unfair dismissal complaint was the Commission and the time for filing the application had lapsed.
That Ms Lehner was not aware of the available legal remedies in respect of her dismissal does not explain the whole of the period of the delay and will generally not provide an acceptable explanation for the delay. I accept that the FWO might have been more prompt in alerting Ms Lehner to the fact that it does not have any role in dealing with unfair dismissal complaints (as opposed to contraventions of the general protections provisions of the Act), but that explains only two of the eight days of delay. I am not persuaded that the whole of the period of the delay has been explained. I also consider Ms Lehner’s attempt to sheet home blame to the FWO for the entire period of delay and her suggestion that had she known or been told that she had to contact the Commission about her dismissal she would have done so, to be hollow. Three quarters of the period of delay occurred after Ms Lehner was told the appropriate forum was the Commission and that the statutory time for lodgement had already lapsed. I consider the absence of any explanation for the 6 days after the FWO email which made clear that “time has lapsed in your case”, weighs against a conclusion that there are exceptional circumstances.
There is no dispute that Ms Lehner became aware of the dismissal on the day that it took effect. The correspondence from Western Health which Ms Lehner received by email on the day the dismissal took effect (28 February 2023), makes clear that her employment was being terminated and that the dismissal was “effective close of business 28 February 2023”. Normally, that an applicant became aware of the dismissal on or before the day it took effect means the applicant had the benefit of the full 21-day period within which to lodge the application, and so might be a factor that weighs against a conclusion that there are exceptional circumstances. Here however I accept that Ms Lehner thought that the complaint to the FWO would result in an examination whether the dismissal was unfair. Consequently, this matter weighs neutrally.
If an applicant disputes a dismissal with her or his employer or brings the dispute to the employer’s attention, the employer is on notice that there is a controversy about the dismissal, so that in such circumstances this fact might weigh in an applicant’s favour. Conversely the failure to dispute the dismissal and to bring that dispute to the employer’s attention might weigh the other way. Whilst Ms Lehner sent emails to Western Health on multiple occasions following her dismissal, these communications appear to be in relation to her entitlements and Ms Lehner did not appear to take any other steps to dispute her dismissal with her employer. Her complaint to the FWO was however such a step and notice of the complaint reached Western Health including that “this is a delay tactic and will also be passed to the fair work ombudsman along with my claims of ‘unfair termination’” in an email sent by Ms Lehner on 20 March 2023. Western Health was on notice that Ms Lehner contested the fairness of her dismissal. In the circumstances this consideration weighs in favour of Ms Lehner.
Neither party addressed the question of prejudice. The delay period was short, both in a numeric and relative sense. It would be surprising if an organisation the size of Western Health with its resources would suffer any prejudice because of a delay of 8 days. But the absence of prejudice in and of itself does not amount to exceptional circumstances. Nor does the period of the delay in this case justify such a conclusion. I consider that in all the circumstances the consideration of the absence of prejudice weighs neutrally.
Ms Lehner contends that the dismissal was unfair because she was not consulted about returning to work following maternity leave and she was not given sufficient notice that she was required to be vaccinated. Western Health rejects that it failed to engage in a return to work discussion, providing emails as evidence of attempts to contact Ms Lehner, and it asserts that the vaccination mandate provided a valid reason for Ms Lehner’s dismissal as she was unable to fulfil the inherent requirements of her role. This is not a contest about a return to work and consultation. As the correspondence discloses, Ms Lehner had accepted that she would return to work in a role located in Footscray not Bacchus Marsh. The contest is whether the dismissal was unfair. It is not the function of the Commission in extension of time proceedings to determine, fully, the merits of the application. It is all the more difficult to do so where, as here, there was no evidentiary testing of the parties’ respective positions. Nevertheless, some assessment must be made. The difficulty for Ms Lehner is that the weight of authority in cases where an employer is required to comply with health orders concerning COVID-19 vaccinations and unvaccinated workers would appear to be against her. That said, there are several unknowns including whether the work Ms Lehner performed could have been undertaken from home. Although her case for an unfair dismissal remedy may not be particularly strong, it cannot at this stage be dismissed as lacking any merit. Nevertheless, considering the available material I assess the merits of the application as weak and so this consideration weighs against Ms Lehner.
The fairness consideration in s 394(3)(f) of the Act weighs neutrally. Neither party properly addressed fairness as between the Applicant and other persons in a similar position. Western Health referred to a decision in Massey v Centrecare,[1] which concerned a refusal to extend time to lodge an unfair dismissal remedy application by an unvaccinated person who had been dismissed. But there the similarity ends, and Western Health does not explain how the decision assists with engaging in the enquiry under s 394(3)(f). Massey involved a casual employee, the application was 32 days late, the explanation for the delay was that Ms Massey was moving house and was preoccupied with that endeavour, Ms Massey was said to have become aware of the dismissal after the dismissal took effect, Ms Massey took no steps to dispute the dismissal and Ms Massey was aggrieved by the dismissal because no reasons were given and felt this was unfair. Not all elephants are the same or even similar just because each has a trunk. The s 394(3)(f) fairness consideration requires a comparison between the applicant and other persons in a similar position. The positions of Ms Lehner and Ms Massey hardly qualify.
Here there is no acceptable explanation for the whole of the delay and no evident urgency to lodge the application once it was clear to Ms Lehner that the statutory lodgement period had lapsed. There is some contesting of the dismissal, but the merits of the application do not appear strong, and the other considerations weigh neutrally. In the circumstances I am not persuaded that there are exceptional circumstances. Section 394(3) allows the Commission to allow a further period for an unfair dismissal remedy application to be made only if the Commission is satisfied there are exceptional circumstances taking into account the matters enumerated therein and discussed above. The precondition to the exercise of power has not been fulfilled. A further period is not allowed, and as the application lodged on 29 March 2023, was lodged outside of the time prescribed, it was not made in accordance with the Act. The application will be dismissed.
Order
I order that:
The application to allow a further period within which Ms Tammie Lehner might be allowed to lodge an unfair dismissal remedy application is refused; and
The application (U2023/2798) lodged by Ms Lehner on 29 March 2023 outside of the time prescribed in s.394(2) of the Fair Work Act 2009 is dismissed.
DEPUTY PRESIDENT
Hearing details:
Determined on the papers.
Final written submissions:
Ms Tammie Lehner: 8 May 2023
Western Health: 4 May 2023
[1] [2022] FWC 250
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