Cassandra Chloe Kent v Direct Chemist Outlet Lucas
[2024] FWC 1039
•22 APRIL 2024
| [2024] FWC 1039 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Cassandra Chloe Kent
v
Direct Chemist Outlet Lucas
(C2024/1015)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 22 APRIL 2024 |
Application to deal with contraventions involving dismissal - application made outside of 21-day time limit - no exceptional circumstances present – extension of time not granted – application dismissed.
On the 19 February 2024, Ms Cassandra Chloe Kent (the Applicant) lodged an application (the Application) pursuant to s. 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 28 January 2024 by Direct Chemist Outlet Lucas (the Respondent) contravened her workplace rights. The Respondent raised a jurisdictional objection to the application on the grounds that it was lodged outside the 21-day statutory time limit.
Following allocation of the matter to my Chambers on 18 March 2024, Directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the application being out of time. Both parties filed material in advance of the hearing listed for 18 April 2024. At the hearing on 18 April 2024, the Applicant who appeared and gave evidence also called a friend Nathan Farrar to give evidence. Abdulrahman Azzam who is the Managing Director of the Respondent appeared on behalf of the Respondent and called Alysha Hayes (Retail Manager) and Huynh Anh Huy Nguyen (Pharmacist) to give evidence.
Background and Evidence
The Applicant commenced employment with the Respondent on 1 May 2023 as a pharmacy assistant at the Respondent’s Lucas pharmacy. Her duties included serving customers, stocking shelves, moving stock around the store, planogramming, invoicing and assisting in the dispensary. She states that on or about 11 July 2023 she dislocated her right shoulder for the first time, that dislocation being followed by a further 22 dislocations by October 2023. The shoulder dislocations led to numerous hospital visits and required her to wear a sling during the July – October 2023 period. The Applicant underwent shoulder reconstruction surgery at the end of October 2023 following which she required six weeks off work for recovery[1].
The Applicant states that three weeks after her surgery she again started suffering shoulder dislocations, meaning the surgery had been unsuccessful. She says she was subsequently advised by her surgeon that she should not return to her previous role in the pharmacy due to its physical demands and her ongoing physical limitations, that of multidirectional shoulder instability. According to the Applicant, she discussed her disability with Mr Brandi in December 2023 during which he told her that he would discuss the option of training her up to be a pharmacy technician with the other managers. She says she emphasised in her conversation with Mr Brandi that she had physical limitations, including an inability to undertake heavy lifting. The Applicant says she reluctantly agreed to Mr Brandi’s suggestion that she do the medication delivery role for a two-week interim period, which she says commenced on or about 18 December 2023[2].
After undertaking the medication delivery role for a number of weeks, which she says she also found too physically demanding because of her shoulder limitations, she was advised by Mr Brandi that the option of training her up as a pharmacy technician would not be pursued. According to Mr Farrar, this conversation which he overheard while accompanying the Applicant, occurred in the pharmacy on 7 January 2024[3].
The Applicant said that the Respondent’s unwillingness to train her up in a pharmacy technician role was on the basis that the Respondent did not believe she was physically capable of performing the role, an opinion she disputed based on medical advice she says she received from her surgeon[4]. She states Mr Brandi then asked if she was willing to do an admin role instead, which she readily agreed too. The Applicant further states that Mr Brandi then told her that he would call her back in the next couple of days to go over what the position will look like which would start on 11 January 2024. She says she was requested to continue the medication delivery role in the meantime[5].
The Applicant worked her last shift for the Respondent on 10 January 2024. She states she had a late-night conversation with Mr Brandi at 9.16pm on 10 January 2024 after leaving her shift early due to suffering a series of shoulder dislocations which necessitated going to hospital. She says Mr Brandi was vague and unclear during the phone call but advised her that there was no admin work for her and that “there was nothing there for me”. She states that she was confused by the phone call as Mr Brandi had not advised her that she had been dismissed[6].
Mr Nguyen states that the Applicant came into the pharmacy on 11 January 2024 and spoke to him about the conversation she had with Mr Brandi the previous evening regarding her employment. Mr Nguyen further states that the Applicant confirmed to him that her employment with the pharmacy had ended due to various circumstances, and she was not happy that another role could not be found for her[7]. Mr Nguyen was not challenged by the Applicant regarding his evidence despite the Applicant claiming she had not spoken with Mr Nguyen on 11 January 2024. When pressed by the Commission on his evidence Mr Nguyen was adamant he had spoken with the Applicant on 11 January 2024 as he had described in his witness statement.
Ms Hayes also gave evidence that the Applicant attended the pharmacy on 11 January 2024 during which visit she handed her uniform to Ms Hayes, thanked her for everything and advised Ms Hayes that she needed a separation certificate for Centrelink[8]. The Applicant was cross-examined on her conversation with Ms Hayes and while agreeing that she returned her uniform to Ms Hayes on 11 January 2024, she said she did so because the uniform was not the correct size. Ms Hayes when cross-examined confirmed that the Applicant was issued her uniform in October 2023, had worn it following its issue and had not reported to Ms Hayes that it was the wrong size and nor had she requested a new uniform in the period up to or on 11 January 2024. She took the Applicant’s return of the uniform and her other comments made during their 11 January 2024 discussion in the pharmacy as indicating she had ceased employment with the Respondent.
Two days after the 10 January 2024 phone call with Mr Brandi, the Applicant says she then messaged management to find out if she still had a job. She says she requested a separation certificate if she had been dismissed. A text message exchange occurred between the Applicant and Ms Hayes on 13 January 2024 in which the Applicant said;
“Hey Lysh. Sorry to bother you but I still haven’t heard from Abdul I was just wondering if you knew what was going on with that?”[9]
At 9.19am on 16 January 2024, Ms Hayes sent a reminder to Mr Azzam regarding the separation certificate in the following terms;
“Morning! Don’t forget Cass’ separation certificate”[10]
After receiving no response for a couple of weeks after her 13 January 2024 text to Ms Hayes, the Applicant says she received a phone call from Mr Azzam. When questioned on the date of this conversation the Applicant stated that she could not be sure. It was then put to her by the Respondent that the conversation actually took place on 16 January 2024, which the Applicant accepted. The Applicant also accepted that during the conversation she again requested a separation certificate and agreed that Mr Azzam had asked her what she would like written on the separation certificate as the reason for termination. She claimed however during cross-examination that her request for the separation certificate was made on the basis of if her employment had been terminated, not on the basis of it (her employment) having been terminated.
The Applicant states that during her phone conversation with Mr Azzam on 16 January 2024 she recounted the details of her 10 January 2024 phone conversation with Mr Brandi, at which she says Mr Azzam expressed disappointment, agreed that it sounded like she had been dismissed and committed to providing a separation certificate to her. The Applicant further states that she did not subsequently hear further from Mr Azzam until 28 January 2024 on which date he claimed to have sent the separation certificate.
On 25 January 2024, the Applicant sent a further message to Ms Hayes in the following terms;
“Hey Alysha
I was just wondering if you know what’s going on with my separation certificate? Also would you be able to send me last my last payslip? I never got it.”[11]
On 25 January 2024, the Applicant also received an email from Mr Azzam to which he attached her final payslip. The payslip relevantly included reference to “Tax on Termination Payout”, “Annual Leave Payout” and “Leave Loading Payout” and stated that the payment had been made on 17 January 2024.[12]
At 3.16pm on 25 January 2024, Mr Azzam sent a text message via WhatsApp to the Applicant attaching a screenshot that appeared to confirm he had issued the Applicant’s separation certificate to Service Australia’s on-line portal. In the accompanying text to the Applicant, Mr Azzam stated as follows;
“I don’t know if they send this to you or it becomes accessible via mygov….”[13]
At 7.36pm on 28 January 2024, the Applicant sent a text message to Mr Azzam requesting that he call her the following day. Mr Azzam responded that he would and then asked the Applicant whether she had received his WhatsApp messages to which the Applicant replied that she had not. Mr Azzam then responded via text in the following terms;
“Oh, I did the separate stuff but I’m not sure if they send the certificate directly to you or through your myGov….”[14]
The Applicant was questioned on whether she had sent any correspondence or text messages to the Respondent after 10 January 2024 seeking clarification on her employment status. She agreed she had not while also accepting that she had sought updates on the status of her separation certificate. She resisted the proposition put to her that her request for a separation certificate indicated she knew she had been dismissed. She explained that she had merely sought the separation certificate if it was the case she had been dismissed, confirmation of which she claims to have never received.
While the Applicant did not receive any formal notice of termination, she claims that her dismissal took effect on 28 January 2023 when Mr Azzam confirmed that the separation certificate had been provided to Service Australia. Following that date, she and her representative made a number of attempts to contact the Respondent with a view to resolving the matter of her dismissal directly with the Respondent. Correspondence was sent to Mr Azzam by Mr Paone on 12 February 2024 requesting that the Respondent provide the contents of the Applicant’s personal file, including reasons for her dismissal. Follow up emails from Mr Paone to Mr Azzam on 13 & 16 February 2024 failed to elicit the information sought from the Respondent. After not hearing from Mr Azzam after the 16 February 2024 email to him, the Applicant filed her application on 19 February 2024.
The Respondent provided a copy of correspondence received from Services Australia dated 11 April 2024 confirming that it had received two employment separation certificates for the Applicant dated respectively 16 & 25 January 2024. Receipt numbers for both certificates were provided in the correspondence. The Applicant advised that despite her enquiries with Services Australia, she had still not been able to access the separation certificates referred to by the Respondent[15].
Should an extension of time be granted for the filing of the general protections application?
As earlier stated, the Applicant filed her general protections application on 19 February 2023. Section 336(1)(a) of the Act states that an application under s 365 of the Act must be made “within 21 days after the dismissal took effect”, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 366(1)(b). The Applicant states that the dismissal took effect on 28 January 2024 although this is disputed by the Respondent who claims that the termination of employment took effect on 10 January 2024.
The contest over the termination date must be resolved as the period of 21 days will have ended at midnight on the 19 February 2024 if it is established that the date of termination was 28 January 2024. While the 19 February 2024 represents a period of 22 days after the 28 January 2024, it would however be deemed to fall within the statutory time period by reason of the operation of s 36 of the Acts Interpretation Act 1901, which has the effect of extending the filing period by one day in circumstances where the 21st day falls on a Sunday as it would in this case if the 28 January 2024 was found to be the effective date of dismissal. If, however, it is established that the effective date of dismissal was 10 January 2024 as argued by the Respondent then the 21 days will have ended on 31 January 2024. Of course, it may be the case that the dismissal took effect on another date as well.
The Applicant contends that her employment was terminated on 28 January 2024 when she received an email from Mr Azzam confirming that he had completed her separation certificate. In the absence of any other formal documentation received from the Respondent the Applicant says she took this advice from Mr Azzam as communicating the termination of her employment. Up until that point she states that she was unsure of her employment status. The Applicant’s submissions as to the date of termination are rejected for the following reasons.
The Applicant worked her last shift for the Respondent on 10 January 2024. She had a conversation with Mr Brandi on the evening of 10 January 2024 during which she was advised by Mr Brandi that the Respondent had no work for her. While I accept the language used by Mr Brandi was far from clear, the Applicant by her subsequent conduct demonstrated an understanding that her employment with the Respondent had ended. This can be seen in the following.
Firstly, she advised both Mr Nguyen and Ms Hayes on 11 January 2023 that her employment had ended. While claiming in her evidence that she had not spoken with Mr Nguyen on 11 January 2024, she declined the opportunity to cross-examine Mr Nguyen on that point when given the opportunity to do so. When Mr Nguyen was pressed by the Commission on that point, I found him to be steadfast and credible in his evidence. I consequently accept his evidence that the Applicant did speak to him on 11 January 2024 and in doing so advised him that her employment with the Respondent had ended.
Secondly, she also returned her uniform to Ms Hayes on 11 January 2024 and at the same time thanked Ms Hayes for all she had done for the Applicant during her employment with the Respondent. The Applicant’s claim that she was just returning her uniform due to it being the wrong size lacks credibility in circumstances where she had the uniform for at least three months prior to the 11 January 2024 and at the time of returning the uniform to Ms Hayes did not request a different size be provided.
Thirdly, it is not apparent that the Applicant communicated with the Respondent after the 10 January 2024 to seek clarification on her employment status. Rather, she was chasing her separation certificate for the purposes of making an application for Centrelink benefits. While she was entitled to be frustrated with the delays in the provision of that requested documentation, the delays in the provision of the separation certificate by the Respondent do not mean the employment relationship had not ended at an earlier time.
Fourthly, the Applicant’s conversation with Mr Azzam on 16 January 2024 could have left her in no doubt that her employment had ended as of 10 January 2024. The fact that Mr Azzam specifically asked the Applicant what reason for dismissal she would like recorded on the separation certificate further reinforces that the employment relationship had ended. The Applicant would have been acutely aware of this given she was seeking a separation certificate.
Fifthly, while the Applicant gave evidence that she has not yet sighted a copy of her separation certificate, I accept the Respondent’s evidence that it lodged the document with Services Australia via its on-line portal on firstly the 16 January 2024 and then again on 25 January 2024. Those actions of the Respondent are consistent with it acting on the Applicant’s request for a separation certificate in the wake of her conversation with Mr Brandi on 10 January 2024.
Sixthly, the Applicant’s final payslip sent to her on 25 January 2024 removes any doubt that the employment relationship had ended. It specifically refers to termination payments and the payout of her annual leave.
The above matters all tell in favour of a finding that the dismissal took effect at an earlier time than 28 January 2024. There is in fact little to no evidence that would lead to a conclusion that it took effect on 28 January 2024 beyond the text message from Mr Azzam to the Applicant confirming he had lodged the separation certificate. The conduct of the Applicant in the wake of the 10 January 2024 conversation with Mr Brandi is consistent with a dismissal having taken effect on that date, of which she was aware. Most tellingly, she communicated her dismissal to Mr Nguyen and Ms Hayes in unequivocal terms. The Applicant’s argument that she was simply seeking a separation certificate if she had been dismissed is not credible in light of her communication following the 10 January 2024 conversation with Mr Brandi.
It follows from the foregoing that I do not accept that the Applicant’s employment ended on 28 January 2024. I am satisfied that her employment was terminated on 10 January 2024. The Respondent can be rightly criticised for its failure to document that outcome by way of providing correspondence to the Applicant or promptly providing the requested separation certificate directly to the Applicant. Those failures do not alter my conclusion that the Applicant was dismissed on 10 January 2024 and that she was aware of that. Having reached this conclusion, it is necessary for me to now consider whether an extension of time for the filing of the application should be granted.
The Act allows the Commission to extend the period within which a general protections dismissal dispute application can be made only if it is satisfied that there are ‘exceptional circumstances.’ Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[16] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[17]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 31 January 2024. The delay is the period commencing immediately after that time until 19 February 2024, although circumstances arising prior to that day may be relevant to the reason for the delay.[18]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[19] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[20].
The Applicant submits that the delay in the filing of her application was caused by her medical condition, her lack of knowledge and understanding of the process for filing an application and her belief that she needed formal documentation of her dismissal to make an application.
With respect to her medical condition, the Applicant submits she was required to attend hospital on two occasions in the week following 25 January 2024 which required her to remain at the hospital for up to twelve hours on each occasion. It is plainly apparent that the Applicant has a serious medical problem in relation to her right shoulder and its predisposition to dislocation. I also accept that she has been routinely required to attend hospital for medical treatment over the past six months and underwent shoulder reconstruction surgery in October 2023. It also appears there may be some ongoing physical limitations arising from her condition. That said, there is no evidence before me that would persuade me that her visits to hospital in the week of 25 January 2024 prevented her from preparing and filing her application either prior to that date or at an earlier time than she ultimately filed her application.
As regards the Applicant’s claimed ignorance of lack of awareness of the process for filing a general protections application, it is well established that ignorance or lack of awareness of the process and filing timeframes is neither unusual nor out of the ordinary. As regards her belief that she was required to have written documentation confirming her dismissal, I accept she may have held a genuine belief that such documentation was required. Even if that submission were accepted, she had evidence of her dismissal on 25 January 2024 when her last payslip was sent to her. The fact that the Respondent failed to provide a documented notice of termination and was tardy in providing a separation certificate was no barrier to the Applicant filing her application following her dismissal on 10 January 2024 at an earlier time than she did.
I find that the Applicant has failed to provide an acceptable explanation for the delay in filing her unfair dismissal application for the period from 31 January - 19 February 2024. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The Applicant’s representative Mr Paone sent a number of emails to the Respondent in the period from 12-16 February 2024 seeking information regarding the Applicant’s dismissal. According to the Applicant this was done in an attempt to resolve the matter directly with the Respondent and avoid the need to lodge an application with the Commission. Beyond those steps it is not apparent that the Applicant took any action to contest her dismissal after it took effect 10 January 2024, other than lodging her general protections application. These circumstances do not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The Application was filed 19 days outside of the 21-day period. The Respondent was unable to identify prejudice it would suffer, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the Application in considering whether to extend time. The Applicant contends that she was dismissed because of a temporary absence due to her medical condition. The Respondent argues that the Applicant was medically unfit to perform any available roles within its business. Neither party filed detailed submissions or material going to the merits.
Having reviewed the limited evidence, it is evident to me that the merits of the Application may turn on contested points of fact which would ultimately need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. However, the Applicant has raised an arguable case that is not without merit. The Respondent has raised a prima facie defence. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s 366(2) of the Act, and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2) of the Act. Accordingly, the general protections application must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
C Kent, Applicant.
A Azzam for the Respondent.
Hearing details:
2024.
Melbourne:
April 18.
[1] Exhibit A1, First Witness Statement of Applicant, dated 21 March 2024, at [1]-[3]
[2] Ibid [4]-[7]
[3] Exhibit A6, Witness statement of Nathan Farrar, at [2]
[4] Exhibit A5, Letter from Melbourne Shoulder Group, dated 15 February 2024
[5] Exhibit A1 at [8]-[10]
[6] Ibid at [11]
[7] Exhibit R1, Witness Statement of Huynh Anh Huy Nguyen, dated 29 March 2024
[8] Exhibit R2, Witness Statement of Alysha Hayes, dated 17 April 2024
[9] Exhibit R8, Text message exchange between Applicant and Alysha Hayes, dated 13 January 2024
[10] Exhibit R7, Text message exchange between Alysha Hayes and Abdul Azzam
[11] Exhibit R8
[12] Exhibit A7, Email from Abdul Azzam to Applicant with payslip, dated 25 January 2024
[13] Exhibit R6, WhatsApp message from Abdul Azzam to Applicant, dated 25 January 2024
[14] Exhibit R5, Text message exchange between Applicant and Abdul Azzam, dated 28 January 2024
[15] Exhibit R4, Email from Service Australia, dated 11 April 2024
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[17] Ibid.
[18] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[19] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[20] Ibid at [40].
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