Blair Buckley v Nando's Australia Pty Ltd

[2021] FWC 6442

[2021] FWC 6442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Blair Buckley
v
Nando’s Australia Pty Ltd
(U2021/9159)

COMMISSIONER WILLIAMS PERTH, 24 NOVEMBER 2021

Application for an unfair dismissal remedy - jurisdiction - out of time.

[1] Blair Buckley (the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Nando’s Australia Pty Ltd (the Respondent).

[2] The application states that the Applicant was notified of the dismissal and the dismissal took effect on 17 September 2021. The application was made on 12 October 2021.

[3] The application was made more than 21 days after the dismissal took effect.

[4] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[5] Consequently, on 2 November 2021, the Commission’s staff wrote to the parties explaining the requirements of section 394 (2) of the Act and requesting the Applicant respond in writing explaining why the circumstances were exceptional and providing any supporting evidence.

[6] The Applicant has provided a written response to the Commission’s direction. The Respondent has also filed their response to the application.

[7] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The reason for the delay

[8] In response to the Commission’s request regarding the requirements of section 394 (2) of the Act the Applicant sent an email with an attached medical certificate.

[9] The email reads as follows:

“Here is a medical cert explaining why it was late to put in. My mental health issues were not in a good place because of this completely and I was seeing legal advice and I’m a full-time carer of a very sick friend” (sic).

[10] The medical certificate from Dr Craig Hookham is dated 3 November 2021. This reads as follows:

“Miss Blair (Bree) Buckley (18/07/1971) has been attending to medical issues in addition to attending to her ex-partner’s medical issues (hospitalisation) which has resulted in a delay in submission of necessary paperwork in regards to her unfair dismissal claim.”

[11] Considering the reasons for delay submitted by the Applicant I first note that seeking legal advice is not an acceptable reason for delay in making this application. Further having caring responsibilities is not an exceptional circumstance itself and is also not an acceptable reason for delay in making this application.

[12] Finally, the medical certificate refers to the Applicant as having “…been attending to medical issues…”. What the medical issues were is not explained in the medical certificate although I note the Applicant refers to mental health issues which are again unspecified.

[13] A Full Bench of the Commission in Australian Postal Corporation v Lili (Karen) Zhang 1, with respect to medical evidence provided to a Commissioner considering whether or not there were exceptional circumstances warranting an extension of time to make an application, held as follows:

“In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application.”

[14] There is no evidence in this case explaining the extent to which the Applicant was incapacitated during the period between being dismissed and making the application.

[15] The Applicant has not provided evidence of acceptable reasons for the delay. The circumstances the Applicant relies on as reasons for the delay in making the application are not themselves exceptional circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

[16] The Applicant was aware of the dismissal when it took effect.

Any action taken by the person to dispute the dismissal

[17] There is no evidence that the Applicant took any action to dispute the dismissal other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

[18] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[19] In the application the Applicant says she was singled out and other staff were afraid to come forward with what they saw in fear of their own jobs.

[20] The Applicant says she did not feel she was being treated fairly or with respect at all.

[21] She also strongly believes she was getting grossly underpaid was there for seven years with the pay barely if at all changing.

[22] The respondent submits that in April 2021 there was an investigation into allegations against the Applicant, which she responded to, which resulted in a formal warning letter being issued on 30 April 2021. This concerned not wearing an apron and repeatedly refusing to put an apron on when directed and throwing the apron in the bin.

[23] Then in May 2021 the Respondent was notified by other employees and a customer alleging inappropriate behaviour and health and safety breaches by the Applicant. Following an investigation and meeting with the Applicant the Respondent issued a final warning letter to the Applicant on 7 June 2021. This concerned asking a staff member to take a piece of cleaning equipment home to sharpen it, telling a regular customer about the prior disciplinary action brought against her, asking staff to cook unapproved products for customers, speaking to staff about other complaints and disciplinary action against her.

[24] The Applicant was also then put on a performance improvement plan.

[25] In August 2021 the Respondent was notified by other employees alleging further inappropriate behaviour and health and safety breaches. These were detailed in a written notification provided to the Applicant and the meeting was scheduled for 1 September 2021. The Applicant was then unfit to work until 14 September 2021.

[26] During September 2021 the Respondent was notified by other employees alleging additional behaviour and health and safety breaches by the Applicant.

[27] All the new allegations were also then provided in writing to the Applicant and a meeting was held on 17 September 2021 to discuss these. The Applicant was invited to bring a support person to that meeting, but she did not.

[28] Having considered the Applicant’s responses to all the final allegations the Respondent decided they were mostly substantiated and given the background of the previous written warnings the Respondent decided to dismiss the Applicant. This was confirmed in a termination letter dated 21 September 2021.

[29] It would seem from the application that the Applicant disputes the reasons for dismissal detailed by the Respondent in its response and summarised above.

[30] Noting the documented history of on three separate occasions allegations being put to the Applicant in writing, on each occasion this was then followed by an opportunity for the Applicant to respond. This resulted in two letters of warning being issued and on the third occasion dismissal of the Applicant from her employment.

[31] On the material provided to the Commission it is self-evident that the Applicant does not have a strong case and is unlikely at a court hearing to be able to prove that her dismissal was unfair.

Fairness as between the person and other persons in a similar position

[32] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[33] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the time limit of 21 days prescribed in the legislation.

[34] I have considered the information provided by the Applicant and considering all of the factors prescribed in section 394 (3) of the Act I am not satisfied that this case involves exceptional circumstances.

[35] Consequently, the Commission is not able to allow a further period for this application to be made.

[36] This application was made out of time and so is not properly before the Commission and so must be dismissed.

[37] An order [PR736113] to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

<PR736112>

 1   [2015] FWCFB 5285.