Georgie Caruana v Caresaver Discount Chemist
[2024] FWC 545
•5 MARCH 2024
| [2024] FWC 545 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Georgie Caruana
v
Caresaver Discount Chemist
(U2024/921)
| DEPUTY PRESIDENT BELL | MELBOURNE, 5 MARCH 2024 |
Application for an unfair dismissal remedy – extension of time application – circumstances not exceptional – application dismissed.
On 28 January 2024, Ms Georgie Caruana made an application to the Fair Work Commission (the Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Caruana alleges she was unfairly dismissed by the respondent, Caresaver Discount Chemist. The respondent agrees that Ms Caruana was dismissed from her employment but denies the dismissal was unfair.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the information in Ms Caruana’s Form F2, she made her unfair dismissal application about 3 days outside the 21-day timeframe. The Commission must therefore determine in the first instance whether an extension of time should be granted for the making of the application.
On 1 February 2024, I issued directions for the filing of evidence and submissions. In compliance with those directions, Ms Caruana filed emails statements on her own behalf, together with various supporting documents. She also filed a signed statement of Ms Zeljana Plecas, who was a witness and a support person. The respondent filed statements by Mr Niglia, who is the Pharmacy Director and Ms Nakhla, who is a manager for the respondent, but as those witnesses were ultimately not called to give evidence, their statements were not tendered. The matter proceeded by way of a determinative conference.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
I set out my consideration of each matter below.
Section 394(3)(a) - Reason for the delay
In her ‘Form F2’ application, Ms Caruana states that the termination of her employment took effect on 4 January 2024, a matter confirmed in her evidence and which was not in dispute. The employer’s ‘Form F3’ response specified the same date. I am satisfied that the date the dismissal took effect was 4 January 2024.
In order to comply with the 21-day period specified by s 394(2)(a), Ms Caruana ought to have made her application for an unfair dismissal remedy by 25 January 2024. In the circumstances, her application was 3 days late.
The delay is the period commencing immediately after the 21-day period specified in s 394(2)(a) until 28 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] 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.[3]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]
In Ms Caruana’s Form F2, there is a heading that asks “Are you making this within 21 days of your dismissal taking effect?" Ms Caruana’s response to that question in her form stated:
“This is my first real job and I was not aware of my employee rights. I went to visit my friend and her mum. Jill Plecas asked me if I had contacted fair work and I said no I don’t understand how that works. So Jill offered to help me this weekend and I hope you consider my application anyway I need help”
In response to the directions I issued, Ms Caruana submitted the following statement on 3 February 2024, which she adopted as evidence before me (irrelevant parts omitted):
“I am sorry for delay in submission of my Fairwork Unfair Dismissal Application 3 days outside the 21-day timeframe.
My education level is only Year 10 and I need help to do a Fairwork Unfair Dismissal Claim and I am stressed and afraid as I was told by Mr Daniel Niglia he would sue me for $2 million dollars if I went to Fairwork.
On 28/12/23 when Ms Sara Nakhla pushed me at work and I ended up leaving work early I went to Caroline Springs Police Station and made a statement. The Police Officer that took my statement said he would report what happened to Worksafe but I haven’t heard back.
My support person, Zeljana (Jill) Plecas who came with me to the meeting at my termination meeting on 21 December 2023 has not been available during Christmas/New Year as she has been on holidays and had Covid only returning this week for me to able to ask for her help. Jill asked me for you to consider my application outside time because she was unavailable until last weekend. Jill also asked me for you to consider approving extension to time under subsection (1) as in the case of Wayne Candy v Structural Cranes Pty Ltd [2012] FWA 5878, support person/representative unavailable to in time.”
On 11 February 2024, Ms Caruana submitted a further email, which she also adopted as her evidence. Under the heading “Reason(s) for delay”, she wrote:
“At the meeting on 21/12/23 Mr. Daniel Niglia threatened to sue me for $2m and he told me his “lawyer” had said to tell me “not” to go to the Fairwork Commission. I was stressed and afraid thinking he was going to sue me for $2m and I can’t even afford a lawyer. They sacked me and accused me of “fraud” and I still had to go to work for another 2 weeks. I was so anxious over Christmas and New Year I couldn’t sleep and I didn’t want to talk to anyone about it. On 28 December 2023 Sara pushed me at work and I went to Caroline Springs Police Station to make a statement. Senior Constable Kitching said he would investigate and report it to Worksafe. I didn’t feel like I could talk to anyone about what happened except Jill Plecas but she was away and then had Covid, and she didn’t know the deadline. I finally got to see Jill and she helped me put the application together the day she tested negative to Covid which was Sunday 28/01/24.”
Separately, Ms Caruana stated:
“I was threatened to be sued for $2m if I did anything, I was afraid and stressed to take it further.”
“I am confused and don’t understand they sacked me and accused me of fraud but I still had to work another 2 weeks. When I told the Police about them saying I had done fraud they said that I would have been sacked straight away not told to keep working.”
“Mr. Niglia repeatedly said on 21/12/23 he had spoken to his “lawyer” about sacking me, that to me means they already knew what they were doing was wrong to be talking to a lawyer. No prejudice to the employer for delay if they were already talking to a lawyer before they sacked me as they had pre-planned what they were doing.”
Ms Plecas’ evidence on the issue of the legal threat is similar although not identical. Her written statement provides:
“Mr. Niglia often referred to have spoken to “his lawyer” regarding Georgie’s employment and said his lawyer had told him to advise Georgie he “strongly suggests to not pursue an unfair dismissal claim with Fairwork”.
Mr. Niglia claimed Georgie’s complaint about Ms. Nakhla requesting to see her bottom during the uniform incident was “frivolous and vexatious”. Mr. Niglia said that Ms. Nakhla had the right to sue Georgie for $2 million for making such a complaint as that is what Ms. Nakhla was investing to buy into the Pharmacy business and her reputation was in jeopardy. Mr. Niglia also stated that his lawyer advised to tell Georgie if she posts a bad Google Review he would take legal action against her. I feel such a statements by Mr. Niglia of legal action were intended to intimidate Georgie and instil fear.”
As a factual matter, I prefer Ms Plecas’ version concerning the threats of being sued. While I am prepared to accept that Ms Caruana was doing her best to describe the detail of the meetings, Ms Plecas was clear in her evidence that the threatened $2 million lawsuit would be from Ms Nakhla, although it was conveyed by Mr Niglia. The respondent led no evidence to the contrary. I would record briefly that, in either case, the threat was heavy-handed and unprofessional – on no possible scenario drawn to my attention could it be said there would be a claim remotely in the order of $2 million if Ms Caruana pressed ahead with a complaint (through the Fair Work Commission or otherwise).
I also accept Ms Plecas’ evidence of a separate threat of “legal action” if Ms Caruana posted a “bad Google Review”.
There was some evidence before me of a telephone conversation between Ms Caruana’s father and Mr Niglia that the respondent sought to rely upon. Ms Caruana was not a party to that call, although she overheard parts of it, and Mr Niglia did not give evidence. The evidence before me does not allow me to make any findings of relevance concerning Ms Caruana’s reasons for delay.
Taking the above matters together, Ms Caruana’s reasons for delay rely upon a combination of stress, fear of being sued, confusion or lack of knowledge about Commission processes, her age (20 years old at the time of the hearing), her lack of funds, and being unable to speak with her support person.
I have considered Ms Caruana’s evidence and I do not consider it adequately explains the delay or is otherwise a factor supporting “exceptional” circumstances.
I do not consider that Ms Caruana’s ignorance of, or unawareness about, the statutory timeframes for commencing an unfair dismissal application is a factor that points to supporting a conclusion of exceptional circumstances. This is a circumstance shared by many applicants before the Fair Work Commission, whether of the age of 20 years or otherwise. Unlike many applicants, however, Ms Caruana at least appeared to have some assistance, through the assistance of Ms Plecas. Ms Caruana was also able to complete the Form F2, which she did herself.
While I accept that Ms Caruana was plainly distressed and upset by the termination of her employment, that does not of itself provide a reason for delay that points to exceptional circumstances. Again, this is a state of mind that many people in Ms Caruana’s position would experience.
While the threats of legal action were, as I indicated, heavy-handed they do not explain the lateness in filing. Of the threats, one was actually on Ms Nakhla’s behalf; the other was essentially conditional on “bad Google Reviews” or, I infer, in response to some other statement on social media (neither of which occurred). More importantly, however, I do not consider either were sufficiently operative to explain the lateness. Ms Caruana says she didn’t want to speak to anyone other than Ms Plecas. While that might have been her preference, she evidently spoke to her father about being pushed at work, and also spoke to police. She also had the benefit of Ms Plecas’ views from 21 December 2023 and, while Ms Plecas was on holidays, Ms Plecas did not give evidence she was unavailable to be contacted. It appears that the desire to speak to Ms Plecas before filing the unfair dismissal application was an operative reason for the delay.
I understand that the reference in Ms Caruana’s material to Wayne Candy v Structural Cranes Pty Ltd[2012] FWA 5878 invites me to accept the proposition that a combination of factors might bring an application within the “exceptional circumstances” requirement, even though no particular factor in isolation might be considered exceptional. I accept that proposition as correct.
However, I find that the reasons for the delay provided are not, whether viewed in isolation or combination, reasons that are supportive of a finding of “exceptional circumstances”, such that an extension of time should be granted.
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the applicant was notified of the pending dismissal on 21 December 2023, approximately two weeks before it took effect. Therefore, she had the benefit of the full period of 21 days to lodge the unfair dismissal application and, in substance, she had a further period of time from 21 December 2023 in which to collect her thoughts about the matter.
I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5]
The applicant’s evidence, which I accept, is that she questioned the basis of the dismissal at the time the termination of her employment was being considered on 21 December 2023. Otherwise, she has not taken any action to dispute her dismissal apart from lodging her unfair dismissal application. She lodged a complaint with police on 28 December 2023, although that was not about the dismissal.
I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.
The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances.
Section 394(3)(e) - What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a high level.
It is unnecessary to set out the substance of the allegations that led to Ms Caruana’s dismissal. The letter of termination refers to:
· A failure to follow the correct leave procedures.
· Failing to communicate adequately with management.
· Failing to wear the correct uniform.
· Use of inappropriate and unsolicited language.
· Committing fraud on the business by failing to charge customers at the till.
At least three of those matters is reflected in a “Notice of disciplinary meeting” letter dated 27 September 2023, which refers to “work attire, attendance and reliability” and a Performance improvement plan that specifically refers to wearing the correct uniform. I also note that some of those claims appear to have been challenged, based on text messages sent by Ms Caruana to Mr Niglia, where she complains about alleged “bullying” by Ms Nakhla.
A warning letter dated 12 October 2023 repeats those items, and also includes specific reference to “inappropriate and unsolicited language”.
The “fraud” issue is very much challenged. In the evidence before me, Ms Plecas gave clear evidence that they sought an explanation of that claim at the meeting on 21 December 2023 and no explanation was given. I accept her evidence.
It is clear that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about specific incidents involving more than one witness.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).
For the purpose of this application, I consider that the merits of the claim is a matter to be treated neutrally.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I treat this factor neutrally.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[7] 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.[8]
The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. [9]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[10]
The stress and shock that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[11]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, an applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[12]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[13]
I have set out my findings for each of the factors in s.394(a) – (f) above.
While I acknowledge the challenges that Ms Caruana has faced as a result of her dismissal, when having regard to all of the matters listed at s.394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[14] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
G. Caruana on her own behalf with Z. Plecas (support person)
D. Di Florio of The Pharmacy Guild of Australia for the Respondent
Determinative conference details:
2024.
Melbourne (by video link via Microsoft Teams):
March 4.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[11] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[12] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[14] PR771941
Printed by authority of the Commonwealth Government Printer
<PR771938>
0
2
0