| [2022] FWC 6 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Ruddell
v
Windermere Child and Family Services
(U2021/11376)
COMMISSIONER BISSETT |
MELBOURNE, 6 JANUARY 2022 |
Application for an unfair dismissal remedy –extension of time – application granted.
[1] Mr Paul Ruddell has made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr Ruddell was employed by Windemere Child and Family Services (Respondent). He was dismissed from his employment with effect from 5 November 2021.
[2] For Mr Ruddell’s application for a remedy for unfair dismissal to be made within the 21-day time period provided for in the FW Act it was required to be received by the Commission by midnight on 26 November 2021. Mr Ruddell’s application was made to the Commission on 8 December 2021. Mr Ruddell’s application was made 33 days after the date his dismissal took effect and is therefore made 12 days outside the 21-day time limit for making an application.
[3] Mr Ruddell seeks an extension of time within which to make his application.
[4] On 13 December 2021 I issued directions in which I required Mr Ruddell to file submissions and evidence as to why the Commission should find exceptional circumstances exist taking into account those matters specified in s.394(3) of the FW Act such that I should grant an extension of time. Mr Ruddell filed his submissions on 15 December 2021.
[5] The Respondent filed submissions as to the application for an extension of time on 22 December 2021. It included with its submissions a witness statement of Ms Megan Turner, Head of People and Capability for the Respondent.
[6] The application for an extension of time was heard by me on 24 December 2021. Prior to 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 granted the Respondent permission to be represented by a lawyer.
[7] Having sought the views of the parties I determined that the application should be dealt with by determinative conference.
[8] Mr Ruddell gave evidence and made submissions in support of his application. Ms Megan Turner gave evidence on behalf of the Respondent.
[9] Mr Ruddell made an application to the Commission seeking relief from unfair dismissal on 11 November 2021 (the first application). 1 On making this application Commission staff attempted to contact Mr Ruddell on the phone number he provided to the Commission on his application for the purpose of securing payment of the filing fee that must be paid or to seek a fee waiver form from him. Contact by telephone was attempted on 12 and 25 November 2021.
[10] In addition to attempting to contact him by telephone Commission staff also sent written correspondence to Mr Ruddell’s nominated email address on 12 November 2021 in relation to payment of the filing fee. Mr Ruddell was advised in that letter that a failure to pay the fee or to complete a fee waiver form may result in his application being dismissed.
[11] The attempts by Commission staff to contact Mr Ruddell were not successful. Mr Ruddell did not respond and did not pay the filing fee or seek a waiver.
[12] On 7 December 2021 I issued a decision 2 in which I dismissed Mr Ruddell’s first application on the grounds that it had not been made in accordance with the FW Act in that the required fee, or a fee waiver application, had not been received by the Commission.
[13] Mr Ruddell made the application currently before the Commission on 8 December 2021 (the second application).
[14] In McNicol v 4lifeskills Inc 3 Deputy President Beaumont considered whether an application that had been dismissed pursuant to s.587 of the FW Act in circumstances where the applicant in that matter had failed in the first instance to pay the required filing fee meant the application ran foul of the provisions of s.725 of the FW Act which prevent multiple applications in relation to the one dismissal. In that matter the Deputy President concluded that the applicant’s first application had failed for want of jurisdiction. For this reason s.729 of the FW Act (which applies in relation to unfair dismissal applications) did not apply and the rule in s.725 of the FW Act did not stop the application.
[15] I agree with he reasoning set out by the Deputy President and adopt it in this matter. On this basis Mr Ruddell is not precluded from making the second application
[16] 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:
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.
[17] Each of the above matters must be considered in assessing whether there are exceptional circumstances. 4
[18] 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. 5 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.6
[19] The FW 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. A credible explanation for the entirety of the delay will usually weigh in the applicant’s favour however, all of the circumstances must be considered. 7
[20] The relevant period required to be considered under s 394(3)(a) of the FW Act is the period after the 21-day timeframe for lodging an application. 8 However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day time period and, ultimately, whether that reason constitutes exceptional circumstances.9
[21] Mr Ruddell first made an application to the Commission seeking remedy for unfair dismissal on 11 November 2021. That application was clearly made within the time 21-day time period provided for by the FW Act for making such an application.
[22] As set out in the background above, the Commission dismissed the first application on 7 December 2021. That day Mr Ruddell contacted the Commission seeking to make payment of the filing fee. He was advised that the file was now closed.
[23] The following day Mr Ruddell made his second application (which is now out of time). On being contacted by the Commission he made the payment of the filing fee without delay.
[24] Mr Ruddell agreed in his evidence that on 12 November 2021, after filing his first application, he received correspondence from the Commission and that correspondence was in relation to the payment of the filing fee. He said however that he thought he had then paid the filing fee by telephone.
[25] Mr Ruddell said that, following his dismissal from his employment with the Respondent, he had to replace both his phone number and computer as these had previously been provided by the Respondent.
[26] When he made the first application to the Commission on 11 November 2021, he indicated his new phone number (as advised to him by his provider) was not, at that time, operational. He said in his evidence that he had trouble with the provider associated with the new telephone number and was eventually told by that provider that the phone number given to him was wrong.
[27] Mr Ruddell also said that, at the time he made the first application to the Commission, he had a lot of outgoing expenditure from his account including for the new phone number, for a computer and for paying bills for his mother (who was widowed early in the year). He thought that he had paid the filing fee to the Commission amongst other bills he was paying at the time. Mr Ruddell said did not check his account to see that he had paid the filing fee as he thought he had done so.
[28] Mr Ruddell said that while he waited for his new phone number to be activated he had to conduct all transactions/business such as paying bills that he would normally do on his mobile phone from a public phone.
[29] Mr Ruddell said that he was told by people he knew who had made applications to the Commission that sometimes it took some time for matters to be dealt with. Further, his experience with the courts was that, while you would receive an acknowledgement of your filed application relatively quickly, further progress of the matter would take time. For this reason he was not overly concerned that he had not further heard from the Commission after 12 November 2021 for a few weeks after making his first application.
[30] After having received the letter with respect to payment of the filing fee on 12 November 2021, Mr Ruddell said the next he heard from the Commission was when the decision on 7 December 2021 dismissing his first application was issued. He said that, on receipt of the decision, he contacted the Commission to try and pay the filing fee but was told his application had been dismissed. He then made a fresh application (received by the Commission on 8 December 2021) and paid the filing fee.
[31] Mr Ruddell submitted that he made the first application on time and thought that he had paid the filing fee. On finding out that he had not done so he took swift action to remedy the situation.
[32] The Respondent submits that Mr Ruddell received and read the letter from the Commission of 12 November 2021 in relation to the requirement to pay the filing fee but that he did nothing about it. That Mr Ruddell was distracted by paying bills, helping his mother and arranging a new phone number and computer are not, the Respondent submits, unusual circumstances.
[33] The Respondent further submits that it is a relevant consideration that the Applicant took no action to proactively contact the Commission to ensure the Commission had correct contact details for him.
[34] I am aware from the decision issued on 7 December 2021 that Commission staff could not contact Mr Ruddell by telephone at the times leading up to the decision because the telephone number was ‘not connected’. I am therefore satisfied that Mr Ruddell had not, up until that time, provided the Commission with a functioning telephone number. I accept Mr Ruddell’s evidence that this was caused by problems with his service provider. The lack of a functioning telephone number (and advice of such to the Commission) meant that attempts to contact Mr Ruddell by telephone in relation to the first application filing fee were not successful. This resulted in Mr Ruddell’s first application being dismissed whereupon he made the second application.
[35] I accept Mr Ruddell’s evidence that he thought he had paid the filing fee and hence had no reason to check his account to ensure that it had been paid.
[36] The delay in Mr Ruddell making the second application was caused by him believing that he had made a complete (first) application to the Commission and only becoming aware of his error on day 32 after his dismissal. Mr Ruddell then sought to ‘complete’ the first application and, when he could not, made a fresh application the following day.
[37] For this reason Mr Ruddell’s second application was filed late.
When the person first became aware of the dismissal
[38] Mr Ruddell said that his dismissal took effect on 5 November 2021 and that he was aware of the dismissal at this time.
Any action taken to dispute the dismissal
[39] It is not in dispute that, beyond the filing of the first application and this later application, Mr Ruddell has taken no other action to dispute his dismissal.
Prejudice caused by the later application
[40] There is no claim of prejudice caused by the late application.
Merits of the application
[41] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 10 In this case it is reasonable to briefly set out those matter that go to the merits of the claim.
[42] Mr Ruddell says that there are substantive issues to be addressed by his application and for this reason the merits of his claim of having been unfairly dismissed should be heard.
[43] As to the merits, Mr Ruddell said that the Respondent required him to take an ‘experimental vaccine’ that is not lawful. He also claimed that the Chief Health Officer’s (CHO) direction was not lawful and that, for it to be lawful, it required an Act of Parliament. Further, Mr Ruddell said that any such law in Victoria would not be enforceable as it would be prohibited by operation of s.106 of the Australian Constitution as it would be contrary to the Commonwealth Biosecurity Act.
[44] Mr Ruddell said, that, contrary to the evidence of Ms Turner, he was not required to interact with clients and that he undertook all of his work remotely.
[45] Mr Ruddell agreed that his preference is to undertake client facing work and that he did such work when he commenced with the Respondent in 2017. For personal legal reasons he stopped doing such work however the legal issue was resolved on 19 May 2021. Despite this he said that he had not recommenced client facing work.
[46] Mr Ruddell agreed that he had discussion with the Respondent about returning to a client facing role.
[47] Mr Ruddell agreed that he was aware that there was a requirement for staff involved in direct client service delivery work to be fully vaccinated. Further, he said that he understood he could be subject to disciplinary action if he was not vaccinated but that he was waiting for the Respondent to provide him with information on the experimental drugs, safety assessment and related matters.
[48] Ms Turner provided evidence that Mr Ruddell was employed by the Respondent in “customer facing” work generally referred to as “outreach” work. She said that from about June 2019 Mr Ruddell was on temporary altered duties because of personal legal matters but in May 2021 this was resolved and he returned to his normal duties.
[49] As a result of COVID-19 Ms Turner said that Mr Ruddell, along with other staff of the Respondent, could work remotely. This ended in October 2021.
[50] As a result of Mandatory Vaccination (Workers) Directions (Directions) and the Mandatory Vaccination (Specified Workers) Order No. 1 2021 (Order) issued by the CHO Mr Ruddell, along with other employees of the Respondent, were asked to provide information with respect to their vaccination status. Ms Turner said that Mr Ruddell refused to do so.
[51] As a result of this refusal and, following an assessment by an internal review panel, further correspondence with Mr Ruddell and a meeting with him, the Respondent determined to terminate Mr Ruddell’s employment on the basis that he could not perform the inherent requirements of his position. This decision was conveyed to Mr Ruddell by letter dated 3 November 2021.
[52] In his submissions Mr Ruddell said that the Respondent should be prepared to defend its actions and the merits of his case provide the grounds for granting the extension of time. Mr Ruddell submits that the way his employment was terminated was wrong.
[53] The Respondent submits that, on the basis of the evidence of Ms Turner it is apparent that Mr Ruddell was required to provide direct services to clients of the Respondent and that it was not possible for him to do this work remotely. Further, it says that he was aware he was required to provide his vaccination status in accordance with the CHO Directions and Order.
[54] The Respondent submits that it was an inherent requirement of Mr Ruddell that he be vaccinated and, without vaccination, he could not perform this role. Alternatively it says that Mr Ruddell failed to comply with a lawful and reasonable direction of the Respondent that he be vaccinated. Both of these, the Respondent submits, provide a valid reason for the dismissal of Mr Ruddell. Absent any other material the Respondent therefore submits that there is little if any merit in the claim of Mr Ruddell.
Fairness
[55] Neither party made submissions in relation to issues of fairness.
[56] While Mr Ruddell’s application was made 33 days after the date of his dismissal, until 32 days after the date of his dismissal Mr Ruddell believed that he had a complete and properly made an application lodged in the Commission. It cannot be ignored however that, during this period, Mr Ruddell did not ensure that the Commission had a valid telephone number on which to contact him. Further, while he ‘thought’ that he had paid the filing fee in relation to the first application he took no action to confirm that he had done so. Whilst it could be that Mr Ruddell should have been more diligent in these matters they do not outweigh my acceptance of his evidence that he considered his first application was complete and that he had paid the filing fee.
[57] While it might be suggested that the Commission might have contacted Mr Ruddell a second time by email prior to deciding to dismiss his first application, contact was considered made with Mr Ruddell by email on 12 November 2021. Attached to that email was a letter advising Mr Ruddell that he needed to pay the filing fee. The Commission had no reason to think this email had not been received by Mr Ruddell and Mr Ruddell confirmed in his evidence that he had received it. That he did not respond to that email and was not contactable by telephone provided reasonable grounds for the Commission to conclude that Mr Ruddell did not intend to pursue his application and to, therefore, dismiss his application without further attempts at contact.
[58] On finding that his application had been dismissed by the Commission however, and over the following 24 hours, Mr Ruddell sought to make the payment (which was refused as the application had been dismissed) then filed his second application and took steps to, and did pay, the filing fee.
[59] The circumstances that Mr Ruddell found himself in are unusual. His employment was terminated, he had to return his mobile phone number to the Respondent and then source a new mobile phone number for his personal use. While he took these steps immediately, delays and problems with his service provider were matters that were beyond his control.
[60] For these reasons I consider that Mr Ruddell has provided an acceptable explanation of the reason for the delay in making the second application.
[61] As to the merits of his claim, Mr Ruddell has an almost insurmountable barrier to overcome in demonstrating that his dismissal was unfair. His views as to the ‘legality’ of the CHO Directions and Order and his view as to what is required for the CHO to make such Directions or Orders lawful are not matters for the Commission to determine. Likewise his view as to the ‘experimental’ nature of the vaccines is not a matter for the Commission to determine. Mr Ruddell’s arguments as to a breach of the Constitution are matters for the Courts and not for the Commission. The totality of the merits of Mr Ruddell’s case rest on these matters.
[62] However, it does appear that there are some disputed facts in the matter, including details of the work required to be undertaken by Mr Ruddell at the time his employment was terminated and the discussions he had about returning to his ‘normal’ duties post the resolution of his personal legal matters. Despite this I find the merits of the application to be quite weak.
[63] In this case there is a reasonable explanation for the delay in making the application for unfair dismissal and there is a weak argument as to the merits.
[64] Given the circumstances that led to the delay in making his (second) application I am however, in the circumstances, satisfied that there are exceptional circumstances. In making this finding I have determined that all other factors (beyond the reason for the delay and the merits of the claim) are neutral considerations.
[65] Having found the existence of exceptional circumstances it is necessary to determine if I should grant an extension of time.
[66] Given my consideration of all of the matters I have decided that I should grant the extension of time within which to make the application. I do therefore grant an extension of time. An order 11 to this effect will be issued with this decision.
[67] Given the circumstances of this case I will refer this matter to a staff conciliator for conciliation in the first instance.
COMMISSIONER
Appearances:
P. Ruddell on his own behalf.
A. Foster for the Respondent.
Hearing details:
2021.
Melbourne by telephone:
December 24.
Printed by authority of the Commonwealth Government Printer
<PR737263>
1 Case number U2021/10175
2 Ruddell v Windemere Child and family Services [2021] FWC 6531
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]
5 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
6 Ibid
7 Ibid [39]
8 Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
9 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
10 Kyvelos v Champion Socks Pty Limited, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899