Vicki Anastasiadis v Alfred Health
[2022] FWC 1237
•19 MAY 2022
| [2022] FWC 1237 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vicki Anastasiadis
v
Alfred Health
(U2022/4828)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 19 MAY 2022 |
Application for an unfair dismissal remedy – application filed 78 days out of time –circumstances exceptional – extension granted.
On 27 April 2022, Ms Vicki Anastasiadis made an application to the Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). In her Form F2 – Unfair Dismissal Application (Form F2) Ms Anastasiadis recorded that she was notified of her dismissal on 18 January 2022 when she received the termination letter by post, and that her dismissal took effect on 10 January 2022. It was also outlined in the Form F2 that the unfair dismissal application was not made within 21 calendar days of Ms Anastasiadis’ dismissal taking effect. The Respondent to Ms Anastasiadis’ unfair dismissal application is Alfred Health, which has objected to the application on the basis that the application was lodged out of time. The Commission file was therefore allocated to me for the purposes of determining whether an extension of time for the making of Ms Anastasiadis’ application should be granted. Ms Anastasiadis filed material pursuant to the Directions I made on 2 May 2022. Alfred Health had an opportunity to file any material in reply but did not do so.
I conducted a Determinative Conference on 18 May 2022 at which Ms Anastasiadis gave evidence and made submissions. I granted Alfred Health permission to be represented by a paid lawyer, Mr Rick Catanzariti of DLA Piper Australia, having regard to the consideration in s.596(2)(b) of the Act. Ms Anastasiadis made no objection to the grant of permission.
A termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.[1] The Full Bench of the Commission in Ayub v NSW Trains (Ayub)[2] discussed when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a) and, amongst other things, outlined:
A dismissal may not take effect prior to it being communicated to the employee;[3]
Where the communication of the termination of a contract of employment is in writing, the communication must at least have been received by the employee in order for the termination to be effective;[4]
The mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document;[5]
the date of dismissal is when the employee first has a reasonable opportunity to read the letter;[6] and
in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[7]
It is not disputed, and I am satisfied on the basis of the evidence before me, that although the letter notifying Ms Anastasiadis of her dismissal was dated 10 January 2022, it was sent to her by ordinary post and Ms Anastasiadis did not receive and read it until 18 January 2022. As s.394(2)(a) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, Ms Anastasiadis had until midnight on 8 February 2022 to make an unfair dismissal application within time, having regard to the principles outlined in Ayub outlined above. The Form F2 was filed with the Commission on 27 April 2022. As a result, Ms Anastasiadis’ unfair dismissal application was made 78 days out of time and she requires an extension of time for the making of it.
Legislation
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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]
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Ms Anastasiadis’ application for an extension of time.
Reason for the delay – s.394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting 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.[10]
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 8 February 2022. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for (in this case) the 78-day delay, or any part of that delay, beyond the 21-day period.[11]
While Ms Anastasiadis submits that her mental health suffered as a result of her dismissal and I accept Ms Anastasiadis may have immediately experienced some stress and a negative reaction as a result of learning of her dismissal after 25 years of employment, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions and Ms Anastasiadis produced no material (medical or otherwise) that persuades me that she was so debilitated up until 7 February 2022 that she could not have completed and filed a Form F2 within the 21-day period prescribed for making an application.
Ms Anastasiadis spoke with friends during the period leading up to 7 February 2022 after learning of her dismissal. These conversations lead Ms Anastasiadis to seriously consider making an unfair dismissal application, although she did not act on them and nor did she then appreciate there was a 21-day time limit. I accept Ms Anastasiadis may not have had prior experience with unfair dismissal laws and processes or dealing with the Commission but it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[12] and unfamiliarity is not exceptional. However, matters changed profoundly on 7 February 2022.
Tragically, Ms Anastasiadis’ husband suffered a fatal fall on 7 February 2022 in highly distressing circumstances. Ms Anastasiadis says her husband’s death caused her mental health to further deteriorate and thereafter she was not in any state to make application. It was not until mid to late April 2022, Ms Anastasiadis started making enquiries about making an unfair dismissal application. She searched the Commission’s website, discussed her circumstances with the office of the Fair Work Ombudsman and received some telephone advice from another provider. Ultimately, Ms Anastasiadis filed her application on 27 April 2022.
Ms Anastasiadis was entitled to utilise the whole of the 21-day period after her dismissal took effect to make an unfair dismissal application. I am not prepared to conclude that there was no possibility of Ms Anastasiadis making her unfair dismissal on either 7 February 2022 (Day 20) or 8 February 2022 (Day 21) absent her husband’s death. I accept that this tragic occurrence on Day 20 altered things profoundly and effectively denied Ms Anastasiadis the opportunity to make application on either 7 February 2022 or the following day, Day 21. Further, I accept that the tragic death of Ms Anastasiadis’ husband provides an entirely reasonable and acceptable explanation for the 78-day delay until 27 April 2022. This weighs in favour of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
Ms Anastasiadis’ dismissal took effect when she read the termination letter on 18 January 2022. She therefore had the full 21-days within which to lodge her application. I consider this to be a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
Action taken to dispute a dismissal, other than lodging an application, may weigh in favour of granting an extension of time.[13] On 19 January 2022 at 9.20am, having received her termination letter in the post the previous day, Ms Anastasiadis sent an email to the author of the termination letter taking issue with a range of matters he had raised and other circumstances. Accordingly, this factor weighs in favour of a finding that there are exceptional circumstances but not to any significant degree.
Prejudice to the employer – s.394(3)(d)
Neither party submitted there was any prejudice to Alfred Health including prejudice caused by the delay and I cannot identify any greater prejudice that would accrue to Alfred Health caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it very little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s.394(3)(e)
I am required to take into account the merits of the application in considering whether to extend time, but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
In short compass, it is not disputed that Alfred Health was under an obligation pursuant to the COVID-19 Mandatory Vaccination Directions No.5 (and subsequent versions) to not permit its unvaccinated workers to work outside their ordinary place of residence on or after 15 October 2021 and that the requirements under the Directions remain in effect. Further, it is not in dispute that Ms Anastasiadis held a job that required her to attend a premises of Alfred Health, that she was unvaccinated at the time of her dismissal and that she remains unvaccinated. Additionally, while Ms Anastasiadis held underlying health concerns about receiving a COVID-19 vaccine and had provided a letter from her general practitioner to this effect, it does not appear to be disputed that this did not constitute the medical certification required for her to be considered an ‘excepted person’ under the Directions. Therefore, there seems little doubt that there was a valid reason for dismissal related to Ms Anastasiadis’ capacity.
Ms Anastasiadis asserts her dismissal was unfair because she was a loyal and hardworking employee of Alfred Health for over 25 years who was terminated despite having provided Alfred Health with a medical certificate certifying that she was unfit to work from 10 January 2022 to 4 February 2022. Ms Anastasiadis also raises some issues relating to the process adopted by Alfred Health prior to the termination of her employment. Further, Ms Anastasiadis submits that she should have been able to use her accrued personal, annual and long service leave entitlements, which would have covered a period until December 2022, at which point the Directions may have changed or she could have reassessed her situation regarding COVID-19 vaccines. Alfred Health maintains such a request would have been unfeasible and there was no indication that the Directions would change in the foreseeable future.
The weight to be given to the merits consideration in an application for an extension of time is dependent on the extent to which there is merit in the substantive application.[14] While I am not able to form a concluded view about the merits of the application without the parties having had the opportunity to fulsomely present their respective cases, I consider that based on the material currently before me, Ms Anastasiadis’ case is weak at best. I therefore consider the merits weigh against an extension of time.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. I note Alfred Health advised that with other employees who were unvaccinated, it has adopted the same approach as the one it adopted with Ms Anastasiadis. I therefore consider this to be a neutral consideration.
Conclusion
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so. The task before me in determining whether to grant the Application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd:
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.”[15]
I have considered each of the matters specified in the various paragraphs of s.394(3) of the Act. I have found paragraphs (b), and (f) are neutral. However, paragraphs (a), (c) and (d) weigh in favour of the grant of an extension, albeit only to a slight degree in the case of paragraphs (c) and (d). In terms of the merits (paragraph (e)) I consider that based on the material currently before me, Ms Anastasiadis’ case is weak at best. Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Ms Anastasiadis to make her unfair dismissal application to 27 April 2022. Accordingly, the matter will now be the subject of further directions so that the merits of Ms Anastasiadis’ unfair dismissal application can be heard and determined.
DEPUTY PRESIDENT
Appearances:
Ms V Anastasiadis on her own behalf.
Mr R Catanzariti of DLA Piper Australia for Alfred Health.
Hearing details:
2022.
Melbourne (via Microsoft Teams):
May 18.
[1] Burns v Aboriginal Legal Service of Western Australia (Inc) T3496 at [24].
[2] [2016] FWCFB 5500.
[3] Ibid at [35] and [41].
[4] Ibid at [17];
[5] Ibid at [42].
[6] Ibid.
[7] Ibid at [48].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[9] Ibid.
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[11] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[14] Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
[15] [2018] FWCFB 901.
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