Unvaccinated and out of time: Commission declines to extend time for two unfair dismissal applications involving unvaccinated employees

In the unfair dismissal jurisdiction, the Fair Work Commission (FWC) imposes a strict 21-day time limit for employees to file unfair dismissal applications. The clock starts running from the date the dismissal takes effect.

If an application is lodged outside the 21-day timeframe, the employee must seek an extension of time and the FWC is tasked with assessing whether exceptional circumstances exist to grant the extension of time. The FWC will take into account a number of discretionary factors, including the reason for delay and the merits of the case.

The FWC was recently tasked with considering whether exceptional circumstances prevented two employees, who were dismissed for refusing to receive mandatory COVID-19 vaccinations, from submitting their applications on time.

In Amin v Mainfreight Distribution Pty Ltd [2021] FWC 5288, an Operations Team Member was terminated from her employment after she refused to provide proof of having received her COVID-19 vaccination.

The Victorian Government released the COVID-19 Mandatory Vaccination (Workers) Directions (No 8) (Victorian Directions) that required certain workers in certain industries to be vaccinated in order to be permitted to continue to work outside their ordinary place of residence.

Mainfreight Distributions Pty Ltd (Mainfreight) considered all of its employees to fall under the “port and freight workers” category and therefore, they were required to receive their first vaccination by 22 October 2021.

On 11 October 2021, Mainfreight wrote to Ms Amin identifying the obligations under the Victorian Directions and acknowledging that she had declined to have the first dose of a COVID-19 vaccination. Mainfreight notified Ms Amin that if she did not comply with the Victorian Directions, it would be unable to provide her with work and she would be suspended without pay, which may result in dismissal.

Ms Amin responded with a letter containing a “religious exemption statement” stating that she held religious beliefs that prevented her from being vaccinated. Ms Amin claimed that her religious views about abortion prevented her from receiving the vaccine as the manufacturers of the vaccination had used aborted foetal cell lines as part of the development of the vaccines. Ms Amin also suggested that she be allowed to work from home, as others in her team were authorised to do so.

Mainfreight rejected Ms Amin’s religious exemption and the possibility of her working from home, stating that it was a requirement of her role to attend the work premises, as she had done throughout the Victorian lockdowns.

After further consultation with Ms Amin, Mainfreight considered there to be no other available employment options that might allow her to work from home and ultimately decided to terminate her employment on 4 November 2021.

On 1 December 2021, Ms Amin lodged an unfair dismissal application before the FWC - six days outside the statutory period. Ms Amin submitted that the reasons for her delay was due to:

  • The emotional and financial stress in having to resolve her personal dilemma of whether she should receive the COVID-19 vaccination; and
  • The attention, time and energy she dedicated to making other job applications.

The FWC rejected the first reason, stating it neither explained a reason for delay or was a likely dilemma during the statutory period. The FWC stated that Ms Amin’s decision to not be vaccinated was made prior to her dismissal and there was no evidence to suggest that she was profoundly distressed about making this choice.

It was the FWC’s view that Ms Amin’s decision to not be vaccinated was merely a choice and her employment was terminated as a consequence of that choice, as opposed to an ongoing personal dilemma that she was resolving that would explain her delayed application.

As for the second reason, the FWC stated that many people who have had their employment terminated would naturally feel distressed about their financial future and job security, but this in itself was not to be regarded as a reasonable ground for delay.

The FWC ultimately held that the Ms Amin’s explanations, both individually and collectively, were not exceptional circumstances that would explain her delay in making an unfair dismissal application.

The FWC also considered Ms Amin’s case to be weak on its merits, noting that Mainfreight was required by law to seek evidence from its employees that they had been vaccinated and if evidence was not provided, to not permit them to work outside of their place of residence.

Accordingly, the FWC did not grant an extension of time and Ms Amin’s unfair dismissal application was dismissed.

In Heron v McKenzie Aged Care Group Pty Ltd [2021] FWC 6707, the FWC also did not grant an extension of time application brought by an employee working in a Queensland Aged Care Facility who was dismissed because he was not vaccinated against COVID-19.

The Queensland Government introduced the Residential Aged Care Direction (No.7) (the Queensland Direction) that required all residential aged care workers to have received at least one dose of a COVID-19 vaccine by 16 September 2021 in order to enter and engage in work at aged care facilities.

On 16 September 2021, McKenzie Aged Care Group Pty Ltd sent a letter of termination to Mr Heron via email, stating that his employment was terminated effective immediately for failing to comply with the Queensland Direction.

Mr Heron made an unfair dismissal application to the FWC on 5 November 2021, stating that the date of his dismissal actually took effect on 17 September 2021 which was the date he read the termination letter.

While Mr Heron’s unfair dismissal application would have been filed outside the statutory time limit on either date, the FWC ultimately settled this contention by stating the date of dismissal took effect on the date the termination letter was sent to him. Therefore, his application was lodged 28 days outside the statutory period.

Turning then to the reason for delay, Mr Heron submitted that his application was late due to:

  • “Biased information” on the FWC’s website that led him to initially believe he had no recourse to dispute the termination of his employment; and
  • The theft of 45 silver bars from his home that were the property of his self-managed superannuation fund and consequently diverted his time and attention away from making the application.

In relation to the first reason, the FWC considered the statement on the FWC’s website that Mr Heron claimed to have mislead him:

“An employer may be able to take disciplinary action, including termination of employment, against an employee for refusing to be vaccinated if the employee’s refusal is in breach of a specific law.”

The FWC refused to accept this submission, stating that the information was correct and was not misleading.

As for the second reason, the FWC did not accept that Mr Heron having to contact the police about the theft and lodging a claim to repay his superannuation fund prevented him from lodging the application within the statutory period.

Accordingly, the FWC did not consider the above reasons, both individually or collectively, to be an acceptable explanation for the delay. The FWC also considered the merits of Mr Heron’s case to be weak.

Therefore, the FWC did not grant an extension of time and the unfair dismissal application was dismissed.

Lessons for employers

When considering whether to grant an extension of time, the FWC will consider all of the circumstances of the case and may give different weight to different factors. As seen in these decisions, the FWC considered the employees’ cases to be without merit and without reasonable exceptional circumstances.  

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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