Julie Richters v Docs Pharmacy Pty Ltd

[2020] FWC 3198

[2020] FWC 3198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Richters
v
Docs Pharmacy Pty Ltd
(U2020/6834)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 18 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

Introduction

[1] This decision concerns an application by Ms Julie Richters (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Applicant’s employment with Docs Pharmacy Pty Ltd (Respondent) was terminated with effect from 25 March 2020. The unfair dismissal application was lodged on 17 May 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 15 April 2020. The application was therefore filed 32 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must 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. 1 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.2

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[6] Section 394(3) 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) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] 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 consider these matters in the context of the Application.

Reason for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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. 5

[10] In her unfair dismissal application the Applicant gave the following explanation for the delay:

“I had to wait almost 2 weeks to find out if I was entitled to any pay out. And I was unaware I was entitled to argue unfair dismissal as I received a redundancy payout.”

[11] By email dated 9 June 2020 to the Commission, the Applicant provided the following additional explanation:

“I had to wait for my last payout to be sorted. This took the account alone 2 to 3 weeks to work out what I was entitled to. At this time I was very stressed, shocked and upset to have been made redundant. I was employed at megasave for numerous years and thought I had a good relationship with the owners. I am good honest worker and did not see being made redundant coming as there was no warning given.

As you can understand it took a while to get my head around what was happening not to mention all the other craziness going on in the world with the Corona virus. It especially upset me when they had just recently employed new staff who have kept their positions there. I feel discriminated against due to my age and what is was currently happening in the world with the Corona virus that they simply “couldn’t fit me into the roster anymore”. They should have just reduced everyone’s hours to keep it fair and keep everyone in a job. I am have at present had no luck in finding new employment.”

[12] At the hearing of the extension of time application, the Applicant gave the following further explanation for her delay:

•  The Applicant was not aware of the 21 day time limit until she spoke to somebody by telephone a few days before she completed her unfair dismissal application on about 12 May 2020.

•  Before filing her unfair dismissal application in the Commission, the Applicant applied for a waiver of the application fee to lodge an unfair dismissal claim. That application for a fee waiver was not successful. As soon as she became aware that her application for a fee waiver was not successful, she lodged her unfair dismissal application and paid the filing fee. That took place on 17 May 2020.

[13] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The documents tendered by the Respondent demonstrate that all termination payments were made to the Applicant on 7 April 2020, being 13 days after her dismissal. 6 Although I have sympathy for the Applicant’s circumstances, the distress, upset, shock and injustice she felt in connection with her dismissal did not prevent her from making an unfair dismissal application and do not provide an acceptable or reasonable explanation for the delay. Further, ignorance of the 21 day time limit is not, of itself, an exceptional circumstance and does not provide an acceptable or reasonable explanation for the delay.7

[14] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[15] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[16] I accept that the Applicant made a number of attempts to contact one of the Respondent’s directors, Mr Connors, in April 2020 to question him as to why she had been made redundant. The Applicant left messages to inform Mr Connors of her phone calls. I consider these steps to constitute ‘action to dispute the dismissal’. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[17] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[18] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, it is apparent that the Respondent contends it terminated the Applicant’s employment on the grounds of redundancy. Although the Respondent informed the Applicant of her dismissal and the fact that it was a redundancy, it did so on the day her dismissal took effect (25 March 2020). It is clear that the Respondent did not comply with relevant consultation obligations in relation to the Applicant’s dismissal. The Applicant therefore has a strong prima facie case that her dismissal was not a genuine redundancy within the meaning of the Act. The Applicant cannot understand why she was selected for redundancy when other employees were not, including a full-time employee in the same position as the Applicant who commenced employment shortly before the decision was made to dismiss the Applicant on the ground of redundancy. The Applicant is further not able to understand why she was not stood down for a period of time until after the COVID-19 restrictions had been lifted. The Respondent contends that other employees had their hours of work reduced as a result of COVID-19 and it had to make decisions quickly in a difficult environment. These issues involve contested questions of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[19] In all the circumstances, the Applicant’s unfair dismissal application has sufficient merit to weigh in favour of a finding of exceptional circumstances.

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

[20] 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 an unfair dismissal 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. I therefore consider this to be a neutral consideration.

Conclusion

[21] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no 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 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

J Richters on behalf of herself
M Connors on behalf of the Respondent

Hearing details:

2020.
Newcastle (by telephone):
15 June.

Printed by authority of the Commonwealth Government Printer

<PR720306>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

 2   Ibid

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 6   Ex R1

 7   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]