Tamzen Harrison v G8 Education
[2022] FWC 2540
•23 SEPTEMBER 2022
| [2022] FWC 2540 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Tamzen Harrison
v
G8 Education
(U2022/8028)
| DEPUTY PRESIDENT Dobson | BRISBANE, 23 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed.
Tamzen Harrison (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with G8 Education (the Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application was made one day out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time, or where it was, that the circumstances of the delay were exceptional such that an extension of time should be granted.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
There being no contested facts involved, I sought the views of the parties in relation to whether the matter could be determined on the papers. The Applicant and Respondent agreed that it would be appropriate to do so.
Submissions and Evidence
The Applicant’s Representative made submissions in relation to the extension of time issue on 17 August 2022, and subsequently filed further supporting materials on 13 September 2022, and a written statement of the Applicant on 20 September 2022. The Respondent relied upon the Form F3 Employer Response filed on 5 September 2022 which set out its position in respect of the extension of time issue.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 12 July 2022.
When was the application made?
It is not in dispute, and I so find, that the application was made on 3 August 2022.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 12 July 2022. The final day of the 21 day period was therefore 2 August 2022 and ended at midnight on that day. As I found above, the application was made on 3 August 2022.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 2 August 2022. The delay is the period commencing immediately after that time until 1:04pm on 3 August 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Applicant’s submissions
The Applicant submitted that she was delayed in filing the Form F2 application because during the termination process, she was attending multiple specialist appointments for her young son. These appointments continued for weeks after the termination of her employment.
The Applicant notes that the stress and anxiety of her termination, coupled with the devastation of her son’s diagnosis, left her feeling that her world was crumbling. The Applicant submitted these circumstances, which lead to her application being filed one day out of time, are thoroughly unique.
Respondent’s submissions
The Respondent submitted that while the Applicant was informed of the decision to terminate her employment on 12 July 2022, the Applicant had been in consultation with the Respondent about the COVID-19 vaccination policy (the Policy) and associated public health directions (the Public Health Directions) since early November 2021. The Applicant was initially prohibited from entering early childhood sites on 8 November 2021. The Respondent worked with the Applicant for an extended length of time to support her understanding of the requirement under the Policy.
The Respondent submitted that the Applicant did not raise her son’s medical concerns prior to her determination, and this factor did not influence their decision to terminate her employment.
The Respondent submitted that attending specialist appointments should be considered predictable and an ongoing situation, which should not be considered out of the ordinary course, unusual, special, or uncommon.
The Respondent submitted that the Applicant had sufficient time lodge the application within the prescribed 21-day timeframe.
Evidence
In her undated witness statement, the Applicant stated that the past twelve months have been an extremely traumatic period for her and her family. After being notified that the Respondent would be implementing a COVID-19 vaccine mandate, the Applicant became immediately stressed. The Applicant alleged she was asked by the Respondent to hide her vaccination status and inform families with children in the care of the Respondent that she was taking leave for six weeks.
The Applicant submitted she felt humiliated and ashamed of her beliefs and choice by the Respondent, which impacted her mental health. The Applicant felt herself going into a depressive state and found it difficult to manage her usual daily tasks. Her sleep, marriage and children were all impacted. The Applicant experienced physical symptoms caused by extreme stress, for which she attended multiple doctors’ appointments, underwent an electrocardiogram (ECG) and did targeted exercise to reduce stress and tension. The Applicant submitted that she lives with anxiety and financial uncertainty, which continues to impact hers and the day to day lives of her family members.
The Applicant submitted that despite being told that her manager would check in with her every two weeks while on leave, no one checked on her unless she instigated contact. The Applicant submitted that she contacted her manager for a check in every two weeks, because she was willing and eager to return to work.
When the Applicant was placed on suspension and told not to enter the workplace, she felt completely isolated. The Applicant submitted she received little contact from the Respondent regarding the status of her employment between February and July 2022.
The Applicant submitted that in her show cause letter, which was not filed with the Commission as evidence, she expressed her beliefs and concerns about the COVID-19 vaccine. The Applicant submitted her concerns were met with a ‘copy and paste statement from previous emails’ which diminished her self-worth and left her feeling that she had no answers.
The Applicant submitted she is extremely upset about her dismissal, and feels her beliefs were completely disregarded by the Respondent.
The Respondent did not contest the Applicant’s evidence.
Findings
The Act does not specify what reasons for delay might constitute exceptional circumstances, however decisions of the Commission have referred to an acceptable[6] or a reasonable explanation.[7]
In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” 5
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.6
Given that the application was filed 13 hours after the time for lodgement had expired, I consider this factor to weigh in favour of granting the extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant’s evidence is that she first became aware of the dismissal after it had taken effect on 12 July 2022.
It is not in dispute, and so I find, that the Applicant first became aware of the dismissal on 12 July 2022 although I note the process that led to the dismissal commenced quite some time beforehand. I consider this factor to be a neutral issue.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 3 August 2022. I consider this weighs against granting the extension of time albeit very slightly.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
In Kornicki v Telstra-Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.” 8
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. While most decisions of the Commission in respect of mandatory vaccination against COVID-19 have indicated that such a direction is a lawful and reasonable one for an employer to make, particularly where there is a government mandate in place in the particular industry, I have not had the benefit of the parties’ substantive submissions in respect of this case. Consequently, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons or the delay, being the Applicant was distressed about her son’s medical diagnosis;
(b) the Applicant becoming aware of the dismissal immediately when it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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.[8] 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.[9]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[10]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist. [11]
The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[12] I note that the Applicant provided no medical evidence to support her claims during the relevant period in regard to her health nor those of her family.
Conclusion
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
I order that the jurisdictional objection be upheld, and that the Applicant’s application be dismissed.
DEPUTY PRESIDENT
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].
[7] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[10] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[11] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[12] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
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