Jacqueline Ansett v Grogans Chemmart Pharmacy T/A Grogans Pharmacy

[2016] FWC 5362

[2016] FWC 5362

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Ansett
v
Grogans Chemmart Pharmacy T/A Grogans Pharmacy
(U2016/6158)

COMMISSIONER LEE MELBOURNE, 5 AUGUST 2016

Application for relief from unfair dismissal - extension of time - time extended.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 20 May 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Jacqueline Ansett (the Applicant) claims that she was unfairly dismissed from her employment with Grogans Chemmart Pharmacy T/A Grogans Pharmacy (the Respondent).

[2] It is common ground that the Applicant was dismissed from her employment with the Respondent on 22 March 2016 and the application was lodged on 13 April 2016. Therefore, the application is one day outside of the statutory time period. The Act provides at s.394(2) that applications are to be made within 21 days, however provides at s.394(3) that the Fair Work Commission (the Commission) may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied there are exceptional circumstances taking into account the factors at s.394(3) of the Act, being:

(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.

[3] The Applicant gave sworn evidence at the hearing and as per the “Applicant’s Outline of Argument: Extension of Time” 1 in essence she provides a number of reasons why she was late in lodging her application. These include that her car had broken down, that she did not have access to the internet at her family home that she was living in, and that in particular her Grandfather had had a heart attack two or so days after the dismissal. This necessitated her spending a considerable period of time caring for her Grandmother; her evidence was six to seven hours per day. The care was given where her Grandmother resided and she travelled there by train.

[4] The Applicant agreed that she owned a laptop with Wi-Fi capability and that she could have accessed, either at an internet café or at a location with Wi-Fi access and accessed the Fair Work Commission website and made an application. I consider that in terms of those factors, the notion of internet access was not a particular barrier to the Applicant being able to lodge an application.

[5] I am more persuaded however by the sworn evidence that her Grandfather had had a heart attack and that she was spending six to seven hours per day looking after her Grandmother. The Applicant’s sworn evidence on that appeared to me to be credible and I have taken it as such. I am persuaded that the rather extraordinary circumstance of having to step-in as a carer for her Grandmother is such that I consider that there is an acceptable reason for the delay.

[6] As to the second criteria, whether the person first became aware of the dismissal after it had taken effect. This is a neutral consideration. There is no doubt that the Applicant was aware of the dismissal on the day that she was dismissed, 22 March 2016.

[7] In terms of whether there was any action taken to dispute the dismissal, it is evident that there was no action taken to dispute the dismissal. This is a neutral consideration.

[8] In terms of prejudice to the employer, there is no particular evidence led that there is prejudice to the employer. There needs to be evidence led to find that there is prejudice. It is a short period of time and I am not satisfied that there is prejudice to the employer. This is a neutral consideration.

[9] In terms of the merits of the application I am satisfied and consistent with previous practice in this Commission, there has not been a detailed examination of the evidence and it is not a matter on which I will make detailed findings. It is clear however that at least on a consideration of the fact that the Applicant had been employed for a reasonable period of time and it was conceded by Ms Stewart for the Respondent that there was a process that the pharmacy was expected to follow, that was not followed. In essence the Applicant was dismissed without an opportunity to respond to the reasons or being notified of the reason, other than being notified on the day and dismissed prior to her shift taking place.

[10] On that basis Ms Stewart agreed that the application had considerable merit on that basis alone. That does not mean that ultimately it would be successful and I make no such finding to that effect. As to the fairness as between the person and other persons in a similar position, there is no particular consideration that arises in respect of that. As to the law to be applied, the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd(Nulty) 2dealt with the expression “exceptional circumstances”. It held that it has its ordinary meaning and requires consideration of all the circumstances:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 3

[11] That is the approach that I rely on in determining this matter. I will not detail, but I also refer to paragraph 15 in Nulty and also rely on that. Having taken into account all of the factors that are relevant to the consideration, I have considered the reasons given for the delay, I am satisfied particularly because of the advent of the Applicant’s Grandfather’s heart attack and the carer’s responsibility that followed for the Applicant, that there is an acceptable reason for the delay and that considerations in s.394(3)(b), s.394(3)(c) and s.394(3)(d) of the Act are neutral.

[12] The merits of the application, based on the admissions of the Respondent, have some considerable strength and on that basis tend to weigh in favour of granting the application. There is no particular consideration under s.394(3)(f) of the Act.

[13] Weighing all the factors together I am satisfied that there are exceptional circumstances that warrant allowing a further period for the making of an application for an unfair dismissal remedy.

[14] An order giving effect to this decision has previously been published in PR580628.

COMMISSIONER

Appearances:

J Ansett on her own behalf for the Applicant

A Steward for the Respondent

Hearing details:

2016.

Melbourne.

20 May.

Final written submissions:

12 May 2016.

 1   Exhibit 1, Applicant’s Outline of Argument: Extension of Time filed 4 May 2016

 2   Nulty v Blue Star Group (2011) 203 IR 1

 3   Nulty v Blue Star Group (2011) 203 IR 1 [13]

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