Tech challenges can extend delayed application, case reveals
The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed a late general protections application against her former employer.
The case revolved around the worker's dismissal due to her refusal to comply with a mandatory COVID-19 vaccination policy.
In this case, the FWC had to consider whether to grant an extension of time for the late lodgement of the application. The decision highlighted issues surrounding workplace vaccination policies, the importance of timely action in legal matters, and the factors considered when granting extensions for late applications.
Background of the case
The worker, a patient support services assistant, had been employed by the company for approximately 16 years. The employer had a contract with SA Health to provide non-clinical services to patients at certain public hospitals.
In 2021, during the height of the COVID-19 pandemic, SA Health implemented mandatory vaccination policies for persons working in public hospitals, including those employed by the company.
The worker, who had migrated to Australia from Poland approximately thirty years ago and was sixty years old at the time, refused to be vaccinated. She considered the vaccines experimental and a risk to her health, and the direction to be vaccinated unreasonable.
The employer initially approved the worker's request to use accrued annual and then long service leave. When those leave forms were exhausted and the worker continued to refuse vaccination, she was stood down without pay but remained employed with leave credits accruing.
Dismissal and subsequent events
After two years, on 24 November 2023, the employer wrote to the worker advising that it was unable to sustain her continued absence from work and that its preliminary view was that it should terminate her employment. The worker was given until 8 December 2023 to provide a response but continued to refuse vaccination.
On 15 January 2024, the employer gave the worker a final seven days to comply with the policy and advised her of seven roles to which she could be redeployed outside the SA Health sector. The worker declined to be vaccinated and did not pursue the redeployment options.
On 21 March 2024, the employer wrote to the worker advising of her termination, with the last day of employment being 25 April 2024. The manager provided this four-week period to enable the worker to advise of any belated change to her vaccination status.
On 15 April 2024, the worker, with assistance from her son, wrote to the employer stating:
"Not sure if you are aware but SA Health is set to remove mandatory Covid vaccinations for employees from next month. Staff will be exempted just by signing a Covid Vaccination refusal form. I am happy to sign this form and return to work!"
However, the employer did not action or reply to this email, and the dismissal took effect on 25 April 2024 as planned.
Worker’s late application
Following her dismissal, the worker sought assistance from the FWC's Workplace Advice Service (WAS) on 30 April 2024. She received legal advice from a solicitor via a referral from the WAS. On 15 May 2024, the twentieth day after dismissal, the worker received a telephone call and follow-up email from the solicitor with a near-fully completed General Protections application.
The application needed to be lodged within 21 days of the dismissal taking effect. Due to a misunderstanding, the worker sent the signed form back to the solicitor on 16 May 2024, instead of to the FWC as instructed. The error was discovered on 24 May 2024, and the application was promptly sent to the FWC on the same day, eight days after the deadline.
The employer opposed the extension of time, arguing that applicant error is not exceptional. They emphasised that the error was due to inattentiveness to simple instructions provided by the legal adviser.
The employer also contended that the worker's claim of poor English proficiency was not a valid excuse, given her 30 years in Australia and her ability to communicate in English at work.
Furthermore, the employer argued that the case on merit was weak, as no workplace right existed to perform work unvaccinated in the SA public health sector at the time of the dismissal. They stated:
"It is simply speculation for which there is no evidence, whether SA Health's policy on vaccination would or did change following dismissal."
FWC's consideration
The FWC had to consider several factors in deciding whether to grant an extension of time. These included the reason for the delay, any action taken by the worker to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness between persons in similar positions.
The FWC noted that while the worker had intended to file the application on time and acted promptly once the error was discovered, there were factors weighing against granting an extension. These included the worker's access to legal advice within the 21-day period and the clear instructions provided by the solicitor.
However, the FWC also considered the worker's limited computer literacy and the fact that she had sought assistance from a friend to file the application. The Commissioner stated:
"Whilst human error is not unusual, [the worker's] prompt attentiveness to her interests at each stage, coupled with the other considerations in s 366(2), warrants an extension of time."
After its consideration of all factors, the FWC decided to grant the extension of time. The Commissioner concluded:
"Considered overall, this combination of factors outweighs the factors against. They lead me to conclude that the circumstances are exceptional."
The decision emphasised that while human error is not uncommon, the worker's prompt action at each stage, along with other considerations, justified the extension.
The Commissioner further noted:
"There are no discretionary reasons not to grant an extension. It is appropriate to do so."
This case highlights the factors that may be considered when seeking an extension of time for late lodgement.
