The Public Service Appeal Board dismissed an employee’s application for an extension of time to appeal against her employer’s decision to terminate her because she had committed two breaches of discipline by not being vaccinated against COVID-19 or having a medical exemption.

The Public Service Appeal Board dismissed an application to accept the appeal out of time because the employer took all reasonable steps to inform the appellant of the termination decision, despite the appellant denying that she knew of the decision. Thus, there was no adequate explanation for the significant delay of 36 days.

Background

The appellant was dismissed as a Level 2 Support Office for the Department of Justice on 21 June 2022, after the Director General found that she had committed two breaches of discipline by not being at least partially vaccinated against COVID-19, or providing evidence of a medical exemption, by 5 February 2022.

The respondent notified the appellant of the disciplinary process before 18 May 2022. On 18 May 2022, the appellant emailed a temporary medical exemption to the respondent but did not respond to the allegations of breach of discipline.

On 26 May 2022, the respondent sent the appellant a letter stating that the breach of discipline allegations were substantiated and dismissal was the proposed disciplinary action. On 21 June 2022, the respondent confirmed, by letter to the appellant, that she was dismissed with immediate effect. Such emails also stated that the respondent left the appellant voice messages on her phone.

On 25 July 2022, the appellant wrote to the respondent querying her return-to-work date. On 26 July 2022, the respondent emailed the appellant stating once again, in effect, that she had been dismissed.

The time to file an appeal expired on 12 July 2022 (21 days after the decision to dismiss). Thus, the appellant filed her appeal 57 days after the respondent dismissed her, which was a delay of 36 days.

Contention

The appellant sought an extension of time to file her appeal on the ground that the Director General did not provide her with information relating to her disciplinary proceedings until 9 June 2022, and she did not know that she had been dismissed until 26 July 2022.

The respondent opposed the extension of time, particularly as the Director General made several attempts to contact the appellant about the outcome of the disciplinary proceedings.

The factors considered when determining whether an appeal should be accepted out of time include:

1. the length of the delay;
2. the reasons for the delay;
3. the prospect of the appellant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

The respondent submitted that a 36-day delay is significant where the appeal period is 21 days.

 The reasons for the delay

The appellant stated that she did not know that she had been dismissed until the respondent’s email on 26 July 2023. She stated that she had not checked her emails for a month before 25 July 2022 and had not received any letters or voice messages. 

The respondent contended that there was no reasonable explanation for the delay, on the basis that it is implausible that the appellant had not checked her emails for a month unless she was attempting to avoid receiving a dismissal letter. Further, the respondent had taken contemporaneous notes regarding the attempted phone calls and voice messages left for the appellant. Thus, the Appeal Board should accept that the telephone calls were made.

Whether the appellant has an arguable case

The appellant maintained she had an arguable case because she held a valid medical exemption before and at the time of dismissal, which meant that her dismissal was unlawful and that it was harsh or disproportionate.

The respondent submitted that the appellant did not comply with the Employee Direction, only submitting a medical exemption three months after she was required to do so, on 18 May 2022.

The extent of any prejudice to the respondent

The respondent conceded that an extension would not create any particular prejudice, beyond that experienced by any respondent.

Findings

The Appeal Board dismissed the appeal because the appellant had no good reason for the delay and the delay was significant. Thus, it was not in accordance with equity and good conscience to extend the time for appeal.

The length of the delay

The Appeal Board considered the delay significant.

The reasons for the delay

The appellant did not provide a reasonable explanation for the delay.

The respondent attempted to ensure that the appellant was aware of and received the communication. The Appeal Board found that the respondent did everything reasonably necessary to communicate with the appellant. Further, the appellant was trying to avoid communication from the respondent.

Whether the appellant has an arguable case

Although the appellant’s Notice of Appeal did not expressly contend that the dismissal was harsh or disproportionate, taking the case at its highest, the Appeal Board considered that the case may be arguable.

The decision can be read here.