Teressa Ula v Dutt Transport Pty Ltd

[2021] FWC 6619

[2021] FWC 6619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Teressa Ula
v
Dutt Transport Pty Ltd
(U2021/10340)

COMMISSIONER BISSETT MELBOURNE, 20 DECEMBER 2021

Application for unfair dismissal – application filed out of time – circumstances not exceptional – extension of time refused – application dismissed.

[1] Ms Teressa Ula has made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking a remedy for unfair dismissal. Ms Ula was employed by Dutt Transport Pty Ltd (Respondent) and her employment was terminated on 25 October 2021. Ms Ula made her application to the Commission on Tuesday 16 November 2021.

[2] For Ms Ula’s application to have been made within the 21-day time period provided for the in the FW Act it was required to be filed by midnight on Monday 15 November 2021. The application was therefore filed 1 day outside the 21-day period prescribed by s.394(2) of the FW Act.

[3] Ms Ula seeks an extension of time within which to make her application.

[4] On 23 November 2021 I issued directions in which I required Ms Ula to file submissions and evidence as to why the Commission should find exceptional circumstances exist taking into account those matter specified in s.394(3) of the FW Act such that I should grant an extension of time. Ms Ula filed her submissions on 28 November 2021 and filed further submissions on 29 November 2021.

[5] The application for an extension of time was heard by me on 9 December 2021. At the hearing the Respondent sought permission to be represented by a lawyer pursuant to s.596(2) of the FW Act. Having heard from each party I decided to grant the Respondent permission to be represented by a lawyer.

[6] Having sought the views of the parties I determined that the application should be dealt with by determinative conference.

[7] Ms Ula gave evidence and made submissions in support of her application. The Respondent’s representative made submissions on the Respondent’s behalf.

EXTENSION OF TIME

[8] The FW Act requires that an application for unfair dismissal be made within 21 days after the effective date of dismissal. Section 394(3) of the FW Act sets out those matters to which the Commission must have regard in deciding if there are exceptional circumstances such that an extension of time might be granted. Section 394(3) states as follows:

394  Application for unfair dismissal remedy

(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.

[9] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 1

[10] 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. 2 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.3

SUBMISSIONS AND EVIDENCE

Reason for the delay

[11] Ms Ula said that, when her employment was terminated, she was “experiencing a lot of stress and anxiety” and that each time she went to make her application she was overwhelmed and experienced “much anxiety”. The delay, she said, was caused by her trying to decide whether to make an application or not.

[12] Ms Ula said that on Friday 12 November 2021 she did make her application. This was 3 days prior to the expiration of the 21-day period. On checking her emails on Sunday 14 November 2021 she saw that her email with her application had not been successfully delivered. She said that she then sent her application and associated documents via drop box. Ms Ula said she then saw an email from the Commission on Monday evening which advised her that the Commission could not access drop box and she would need to send the application in an acceptable format which could be accessed by the Commission. Ms Ula then sent her application and associated documents in a series of emails on 16 November 2021.

[13] Ms Ula said that she became aware of the 21-day time period within which an application to the Commission must be made early in the week of 12 November 2021.

[14] The Respondent relied on the inaction of Ms Ula in making her application. While it accepted that it may have been a difficult time for Ms Ula, the 21-day period is as it is and is to be complied with.

[15] The Respondent noted that Ms Ula was advised by the Commission by email at 9.06 am on 15 November 2021 that the format by which she attempted to file her application was not accessible but that she did not take action until the following day to attempt to file her application, by which time the application was 1 day late.

[16] I am satisfied that the delay in Ms Ula making her application to the Commission was caused by a number of factors:

•  Ms Ula not noticing for 2 days after she first attempted to file her application (that is, not noticing until 14 November 2021) that her first attempt was unsuccessful.

•  Ms Ula not noticing until the evening of 15 November 2021 that her second attempt to file her application (on 14 November 2021) was not successful; and

•  Ms Ula waiting a further day (that is, until 16 November 2021) to (successfully) file her application (1 day after the end of the 21-day period).

[17] The delay in making the applications was, in this respect, caused by Ms Ula’s inattention to her emails and her failure to file her material on 15 November 2021 when she knew her most recent attempt the day before was not successful. This occurred in the context of Ms Ula being aware of the 21-day period for making an application.

When the person first became aware of the dismissal

[18] Ms Ula said, and I am satisfied, that she became aware of her dismissal on 25 October 2021 when she had a discussion with Mr Ashley Clarkson, Chief Financial Officer, of the Respondent and received a letter of termination.

Any other action to dispute the dismissal

[19] Ms Ula said that she had some further conversations with Mr Clarkson following her dismissal. She emailed Mr Clarkson on 27 October 2021 in which she raised issues in relation to being dismissed while she was stood down.

[20] I am satisfied that Ms Ula did raise concerns with the Respondent in relation to her dismissal including that she was, at the time she was dismissed, stood down.

Prejudice to the employer

[21] Ms Ula submitted that there was no prejudice to the employer including any prejudice caused by the delay in making the application as that delay was only for 1 day.

[22] The Respondent does not argue the presence of any prejudice.

[23] I am satisfied that there is no prejudice by the delay in making the application.

Merits of the application

[24] Ms Ula said that she had difficulties returning to the workplace in arranging the flexibility that she required following a period of parental leave. Further, she said that the transition from parental leave to work was hard.

[25] Following her return to work Ms Ula said that she was stood down (pursuant to the relevant provisions of the FW Act) on 23 August 2021. During the period of her stand down Ms Ula said that Mr Clarkson said that he wanted her to be vaccinated even though there was no work for her to return to. She said that she had questions about the vaccination, vaccination was causing her some stress, she was not provided with any alternative (to the requirement to be vaccinated) and that she was not consulted about what was to occur.

[26] Whilst Ms Ula said that she understood the requirement to be vaccinated to attend the workplace, she did not consider the mandate was a law.

[27] Ms Ula said that she considered it unfair to be dismissed while she was stood down when there was no work for her and there was no date for her return to work.

[28] The Respondent submitted that it operates in the transport industry delivering to Coles supermarkets, construction sites and the like. It said that Ms Ula (and its workforce) are classified as essential workers and that there was a requirement issued by the Chief Health Officer that employees be vaccinated by 15 October 2021. Further, it said that Coles required anyone attending its sites to be vaccinated.

[29] The Respondent said it attempted to consult with Ms Ula by both telephone and email. Ms Ula made it clear that she refused to be vaccinated and that she had no exemption. It said that Ms Ula was fully aware of the implication of not being vaccinated and that 100% of its workforce is vaccinated.

[30] The Respondent said that its direction to Ms Ula to be vaccinated was a lawful and reasonable direction and that Ms Ula refused to comply with this direction and with the lawful mandate.

[31] I am satisfied that there is no factual dispute as to the direction given to Ms Ula, the existence of the Chief Health Officer directions (the mandate) or that Ms Ula did not comply with the direction put to her by the Respondent. The factual disputes go to the extent of consultation that occurred with Ms Ula about the Respondent’s requirement that she be vaccinated and the extent to which the direction was fair as she was stood down from work at that time.

[32] It is the case that the Commission will not make findings on the merits of an application where there is a dispute between the parties to an unfair dismissal matter as to a factual matters. A decision on a factual dispute can only be properly made after the receipt of evidence as to those matters by the Commission. For this reason I make no finding as to the merits of Ms Ula’s claim for unfair dismissal.

Fairness

[33] Neither party made submissions in relation to this factor.

CONSIDERATION

[34] Taking into account my findings set out above I am not convinced that there are exceptional circumstances such that an extension of time should be granted.

[35] Ms Ula’s reason for the delay in making her application are not unusual or out of the ordinary. Many people suffer stress at the time of the termination of their employment. Whilst I appreciate that Ms Ula was at home with a 1 year old child she was aware of the 21-day time limit for making an application, she first tried to file her application with the Commission within time. Having noticed that her email did not go through Ms Ula then attempted to file her submission in an alternative format, still within time. Having been advised on 15 November 2021 by the Commission at 9.06 am that her application could not be accessed by the Commission and with her knowledge of the 21-day period, Ms Ula waited another day to make her application. Had Ms Ula re-submitted her application on 15 November 2021 when she became aware that what she had filed was not accessible by the Commission, her application would have been filed in time. The circumstances leading to the delay were all in the hands of Ms Ula.

[36] There is nothing in my findings above that provide any counter weight to my views as to the delay – all other matters are neutral consideration.

[37] For the reasons given above Ms Ula’s application for unfair dismissal is dismissed. An order 4 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

T. Ula on her own behalf.
J. Tass for the Respondent.

Hearing details:

2021.
Melbourne by telephone:
9 December.

Printed by authority of the Commonwealth Government Printer

<PR736867>

 1   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39]

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]

 3   Ibid

 4   PR736868