Unvaccinated nurse assistant's unfair dismissal case rejected

In a recent decision from the Fair Work Commission (FWC), an application for an unfair dismissal remedy was dismissed due to delay despite the applicant’s claim that her law firm committed a “representative error.”

The unfair dismissal application was lodged a day beyond the 21-day statutory period but the FWC found no “exceptional circumstance” that would grant an extension of time.

The applicant worked in an aged care facility as a nurse assistant and was required by state health direction to be vaccinated against COVID-19. She was not vaccinated and did not hold an exemption certificate. As a result, she was dismissed by her employer.

The applicant belatedly applied for an unfair dismissal remedy and said that the delay was “solely the result of representative error.”

Citing previous decisions, the FWC considered circumstances when it can grant an extension of time through the “exceptional circumstances test” where “exceptional” generally means “out of the ordinary or uncommon, but need not be unique or unprecedented.” The FWC added that “ordinary factors in combination may amount to exceptional circumstances.”

The FWC noted that in considering when representative error is an exceptional circumstance, it must consider “all conduct, including that of the applicant,” adding that such is “central to deciding whether representative error is an acceptable explanation for the delay.”

The FWC further said that the applicant must be “blameless,” clarifying that the applicant should not have contributed to the error.

According to evidence, the applicant took no action to contest the dismissal. Almost two weeks before the lapse of the statutory period, she contacted some potential representatives. She was able to get a law firm a week before the lapse but “did not instruct them to proceed” until a few days before her delayed application.

In this case, the FWC found that the applicant left only two working days to complete the application. It said that while the law firm was “responsible,” the applicant gave evidence that she was “aware of the time limit.”

The FWC also considered the merits to decide if the applicant has a sufficient case.

“As the applicant was not vaccinated when legally required to be according to the state health direction, the Commission considered this appeared to pose a significant barrier to the success of the unfair dismissal application,” the FWC ruled.

Since the applicant’s case failed to justify the delay based on exceptional circumstances and the merits also did not support the grant of an extension, the FWC dismissed the application.

The Fair Work Act 2009 (Cth) provides that an applicant for an unfair dismissal remedy made under s.394 must make an application within 21 days after the dismissal took effect.

The decision was handed down on 03 December 2021.