Mr Petar Scott v Chemist Warehouse Head Office

[2019] FWC 1667

[2019] FWC 1667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Petar Scott
v
Chemist Warehouse Head Office; Chemist Warehouse Hervey Bay
(C2019/152)

DEPUTY PRESIDENT BOYCE SYDNEY, 14 MARCH 2019

Application to deal with contraventions involving dismissal – application filed out of time – lengthy delay - prejudice to employer – not a strong case on merits (liability or damages) – applicant not aware of 21 day time limit – applicant issued with fair work information statement at commencement of employment – alleged serious misconduct - no exceptional circumstances – extension of time refused.

Overview

[1] On 9 January 2019, Mr Petar Scott (“Applicant”) lodged a general protections application pursuant to s.365 of the Fair Work Act 2009(“Act”) alleging that his employment was terminated by Chemist Warehouse Hervey Bay (“Respondent”) in contravention of Part 3-1 of the Act (“Application”).

[2] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission (Commission) may allow. 1

[3] To be within time, the Applicant should have lodged his Application on or before 29 September 2018. The Applicant lodged his Application around 15 weeks (105 days) out of time (on 9 January 2019).

[4] On 7 March 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge his Application. At this hearing, the Applicant represented himself, and the Respondent was represented by Ms Prue Ellis, Senior HR Advisor, of the Respondent.

[5] I have determined that the Applicant’s request for an extension of time to file his Application be refused. These are the reasons for that decision.

The employment and the dismissal

[6] The parties agree that the Applicant was terminated verbally by the Respondent on 7 September 2018. The Applicant returned his keys and company property to the Respondent on that day. The Respondent confirmed the Applicant’s termination took effect immediately from 7 September 2018 (due to reasons of alleged serious misconduct) in a letter to the Applicant dated 12 September 2018 (emailed directly to the Applicant on 12 September 2018).

[7] The Applicant was employed by the Respondent as a Qualified Registered Pharmacist during the period 24 April 2018 to 7 September 2018. The Applicant’s contract of employment states that he was on a probationary period of employment for 6 months from his commencement date (24 April 2018), ending 24 October 2018. The dismissal of the Applicant therefore occurred during his probationary period with the Respondent (ie around 5 months after his employment commenced).

Matters to be taken into account

[8] The determination in this matter involves the exercise of discretion. The matters that need to be taken into account by the Commission in order to be satisfied that there are exceptional circumstances to exercise its discretion in an out of time extension request are set out under s.366(2) of the Act, which reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

a) the reason for the delay; and

b) any action taken by the person to dispute the dismissal; and

c) prejudice to the employer (including prejudice caused by the delay); and

d) the merits of the application; and

e) fairness as between the person and other persons in a like position.”

[9] Section 366(2) makes clear that each of these matters needs to be taken into account in assessing whether there are exceptional circumstances. These individual matters might not be significant when viewed in isolation, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[10] Briefly stated, “exceptional circumstances” are those that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, that there are exceptional circumstances for the discretion to be exercised in the Applicant’s favour. I now turn to address the particular matters to which regard must be had.

Reason for the delay

[11] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight. Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 2 

[12] The Applicant submitted that the delay in bringing his Application was for the following reasons:

a) the Respondent did not advise (or adequately advise) the Applicant of the reasons for his termination immediately on 7 September 2018;

b) the Applicant was not provided with a separation certificate by the Respondent until 26 September 2018;

c) the Respondent failed to advise the Applicant of the 21 day time limit to make an application under s.365 of the Act, ie such advice was not provided by the Respondent to the Applicant within the 21 day time limit to make an application (albeit the Applicant could not point to any basis upon which the Respondent was required to so advise him of the 21 day time limit);

d) the Applicant was not aware of the 21 day time limit for lodging a general protections dismissal application until around 5 or 6 January 2019;

e) the Applicant was unwell, allegedly suffering from a depressive illness, during the period 10 September 2018 to 5 October 2018 (to which he has a medical certificate dated 10 September 2018 confirming same);

f) on or about 11 September 2018, the Respondent made a complaint/notification about the Applicant’s alleged work conduct (ie alleged professional misconduct in the performance of the Applicant’s duties at the Respondent) to the Australian Health Practitioner Regulation Agency (“AHPRA”). This caused the Applicant to have to engage with and respond in writing to AHPRA and the Office of the Health Ombudsman (“OHO”), and obtain legal advice in so doing. The Applicant provided (filed/submitted) his response to AHPRA and/or the OHO on 1 November 2018. The Applicant asserts he was only able to concentrate on his response to AHPRA and/or the OHO, and not this Application (or its lodgement), during the period from on or about 11 September 2018 to 1 November 2018;

g) the Applicant made various complaints about the Respondent and the Respondent’s treatment of him (to the Respondent) on 10 and/or 12 September 2018 (ie post the date the Applicant was terminated on 7 September 2018). The Applicant asserts that the Respondent did not allocate an internal case number file to these complaints until 4 December 2018. In short, the Applicant alleges that the Respondent’s delay in dealing with his complaints essentially “put the Applicant off” being able to deal with his Application (or lodge it). For its part, the Respondent says that it did investigate the Applicant’s post-employment complaints internally in a prompt fashion, that the complaints did not concern the Applicant’s termination per se, and that any delay in the issuing of an internal case number was the result of its computer processing system issuing the internal case number later than it should have otherwise been issued.

[13] For all of the reasons set out above, the Applicant submitted, in summary, that the delay by him in lodging his Application was caused by the Respondent, not himself.

[14] The foregoing reasons for delay provided by the Applicant, and which were the subject of his submissions, are not satisfactory.

[15] Shortly put, even if it be accepted that the Applicant was unwell or otherwise engaged in responding to the AHPRA and the OHO up to 1 November 2018, there is no explanation (or no reasonable or credible explanation) for the delay in filing his Application thereafter (ie over 2 months later). That said, the Applicant provided no evidence and made no submission that he was wholly ‘incapacitated’, physically and/or mentally, during (or prior to) the period 29 September 2018 to 1 November 2018.

[16] Further, the fact that an Applicant is not aware of the 21 day time limit to file an application is not an unusual or exceptional situation. Indeed, as the Respondent points out, quite correctly, the Applicant was issued with the statutory “Fair Work Information Statement” upon commencement of his employment, which specifically states that an employee has 21 days from the date of his/her dismissal to lodge a general protections dismissal application. One might assume that an employee would read and take notice of such Fair Work Information Statement, or there would be absolutely no purpose in the legislation requiring that it be so issued in the first place.

[17] In my view, the legislative requirement for an employer to issue a Fair Work Information Statement is a statutory obligation placed upon an employer, that an employer ought be able to point to and rely upon in answer to an employee’s assertion that he/she is not aware of statutory requirements, such as the 21 day time limit, especially in general protections or unfair dismissal applications. It is but one of the many protections (in some cases better defined as statutory privileges) afforded to applicants (employees and unions) under the Act that ought be considered when exercising any indulgence or discretion under the Act in favour of an applicant.

[18] I equally take, for want of a better term, judicial notice, of the fact that simple Google search terms such as “termination of employment” and “dismissal” produce a vast raft of links to articles and publications (including many found on the Commission’s own website) that identify how an employee might challenge his or her dismissal by an employer, and identify a 21 day time limit to do so.

Action taken by the Applicant to dispute the dismissal

[19] The Applicant states that he disputed his termination (verbally) when he was first notified of it on 7 September 2018. He also states that he disputed his termination via email to Ms Ellis on 17 September 2018 (a copy of which was tendered into evidence). At no time did the Respondent suggest that it would withdraw the Applicant’s termination (indeed, the Respondent repeatedly advised the Applicant that his dismissal would not be withdrawn). This is therefore a factor that weighs against the Applicant in that he was neither under any illusion as to the Respondent’s decision to terminate his employment on and from the date of his termination on 7 September 2018, nor was the Applicant in any doubt that he considered his dismissal a matter to which he wished to dispute with the Respondent.

Prejudice to the employer

[20] The Applicant submits that the Respondent has in no way been prejudiced by his Application being filed late, because the Respondent was aware that he disputed his dismissal shortly after he was dismissed.

[21] The period of delay is lengthy. An employee may well advise his/her employer that they dispute their dismissal, but ultimately do nothing about contesting the dismissal in the Commission within 21 days of that dismissal. The notion that simply because an applicant disputes his/her dismissal he/she can later lodge an application well after the statutory 21 day time limit is to be rejected as a basis upon which prejudice to an employer is a matter to be disregarded or considered neutral. In other words, the concept of “no harm no foul” where a respondent is on notice that a dismissal is disputed, but no application is made within the 21 day time limit, is not the start nor the end on the question of prejudice.

[22] The Respondent submits that the length of the delay will prejudice it in that it will make it more difficult and/or onerous to defend the Application (if it ultimately goes to court), especially in relation to potential relevant witnesses to whom it may no longer employ, or to whom the Respondent may have obtained draft statements from at an earlier time. I accept that prejudice will be visited upon the Respondent in the manner submitted by it.

[23] Finality of a disputed dismissal, including in relation to whether or not the dismissal is going to be formally contested before a court or tribunal (via the actual lodgement of an application within time) is a very important consideration for an employer. A respondent on notice that it will be involved in formally contested legal proceedings in relation to a dismissal is likely to take various steps to prepare its case that it would not otherwise take if it reasonably believes that an applicant has decided not to formally contest his/her dismissal (ie consequent upon non-lodgement of an application within time).

[24] The issue of prejudice to the Respondent is thus a factor that weighs against this out of time request being granted (including any finding as to the existence of exceptional circumstances).

Merits of the application

[25] The Respondent asserts that the Applicant’s termination was for reasons of serious misconduct (during a period of probationary employment), based upon the conduct of the Applicant. In this regard, the Respondent says that it has CCTV footage of the Applicant (on 31 August 2018) mixing prescription medication for a customer, dispensing that medication to the customer, and thereafter “sculling” (consuming) the leftover prescription medication from the mixing bottle/vessel. The Respondent asserts that such conduct by the Applicant is contrary to legislation, contrary to the Applicant’s professional obligations as a Registered Pharmacist, contrary to company policy, and contrary to the Applicant’s contract of employment (both in terms of express and implied duties and obligations owed by the Applicant to the Respondent, and noting, of course, the potential reputational impact upon the Respondent’s brand if such conduct was not dealt with promptly by way of summary dismissal).

[26] It is accepted that the Applicant’s dismissal constitutes “adverse action” for the purposes of Part 3-1 of the Act.

[27] The Applicant admits that he consumed the leftover medication, but says that he was only tasting it for consistency/quality reasons, which he asserts that he is entitled to do as a Qualified Pharmacist. The Respondent rejects that the Applicant is entitled to engage in such testing by way of tasting or consumption, and maintains that such conduct is contrary to law (at statutory and contractual levels).

[28] It appears clear that the Applicant made various complaints to the Respondent whilst employed, including in relation to allegations of bullying. In his Application, the Applicant has ticked boxes alleging contraventions by the Respondent of s.340, s.344, s.346 and s.348 of the Act. Apart from the complaints made by the Applicant, there is nothing before me to suggest or otherwise identify any contraventions by the Respondent of s.344, s.346 and s.348 of the Act. No submissions were made by the Applicant in relation to such contraventions at the hearing of this matter.

[29] Despite the Applicant being dismissed by the Respondent for reasons of alleged serious misconduct, the Respondent paid the Applicant one week’s notice (in lieu), being notice in accordance with the Applicant’s contractual probationary period of employment.

[30] I do not consider the Applicant to have a particularly strong case, on the question of liability or damages.

[31] In relation to liability, the termination of the Applicant for consuming prescription medication, evidenced by CCTV footage, would be a strong and credible basis for the Respondent terminating the Applicant’s employment. The Applicant would need to sustain an argument that such a reason was not the real reason for his termination, and rather, that the (or a) operative reason for his termination was a reason prohibited by Part 3-1 of the Act. The Applicant may have a basic prima face case as to liability by reference to s.340(1) and s.341(1)(c)(ii) of the Act, but it is not a strong case.

[32] In relation to damages, the Respondent will obviously argue that even taking the Applicant’s case at its highest, and assuming liability for contravention of Part 3-1 of the Act by the Respondent in dismissing the Applicant because of a prohibited reason, the Applicant ought not be compensated for any contravention as the Applicant was able to be terminated by the Respondent for good reason, bad reason, or no reason at all (other than a prohibited reason under Part 3-1 of the Act) as he was on probation period. In essence, a case does not have reasonable prospects of success unless issues of liability can be properly said to sound in more than nominal damages. Pursing a good case on liability on the basis that it will only sound in nominal damages, but with the desire (or hope) that it will or might also attract a pecuniary penalty for contravention of a statutory provision is, in my view, an awful approach to litigation, and ought not be condoned in any merits assessment.

[33] Although I am not required to make findings of fact or law in relation to the merits of the Applicant’s Application, on the material before me, in my view, the merits do not weigh in favour of the Applicant, or a finding as to exceptional circumstances.

Fairness as between the Applicant and other persons in a like position

[34] Neither party made any material submission on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case. Consequently, this matter is a neutral consideration in the present circumstances.

Conclusion

[35] As is evident from the analysis above, the preponderance of matters that must be taken into account weigh against a conclusion that there are exceptional circumstances. None of the factors weigh against this conclusion, and one factor weighs neutrally. I am therefore not persuaded that there are exceptional circumstances warranting an extension of time. The Applicant did not raise any issue which might persuade me to exercise my discretion otherwise notwithstanding that I might conclude that there are no exceptional circumstances. Nor am I aware of any persuasive discretionary consideration which would warrant an alternative conclusion.

[36] The request for an extension of time is refused and, accordingly, the Application will be dismissed. An order to this effect will be issued accordingly.

DEPUTY PRESIDENT

Appearances:

Mr Petar Scott appeared for himself.

Ms Prue Ellis, for the Respondent.

Hearing details:

7 March 2019

Printed by authority of the Commonwealth Government Printer

<PR705832>

 1   Fair Work Act 2009 (Cth) s 366.

 2   See Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12] and Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; See also Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.