Ms Jennifer Callaghan v Simon Yu Pharmacy

[2014] FWC 7967

[2014] FWC 7967

The attached document replaces the document previously issued with the above code on 17 November 2014.

The document is amended to replace two incorrect references to ‘Adelaide’ with the reference ‘Melbourne’ in paragraph [1] and at the conclusion of the document.

Associate to Commissioner Wilson

Dated 17 November 2014

[2014] FWC 7967

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Jennifer Callaghan
v
Simon Yu Pharmacy
(U2014/12731)

COMMISSIONER WILSON MELBOURNE, 17 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] The following are my edited reasons for decision, originally given in transcript at Melbourne on 24 October 2014.

[2] Ms Jennifer Callaghan has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Callaghan’s application relates to the termination of her employment by Simon Yu Nominees Pty Ltd trading as Simon Yu Pharmacy (the Pharmacy). Her application is date stamped by the Commission as having been received on 22 September 2014.

[3] The Pharmacy argues the application is out of time and the circumstances of the matter are such that an extension of time should not be granted. On the other hand, Ms Callaghan seeks such an extension of time.

[4] For the reasons I am about to refer to, I am prepared to grant an extension of time and I am satisfied that there are exceptional circumstances, taking into account the criteria which is set out within section 394(3) of the Act.

[5] In my consideration, I have taken into account a number of factual circumstances which are disclosed in the material provided by the parties, in their applications, the outline of submissions, and the evidence provided during the hearing of the matter.

Background

[6] Ms Callaghan’s application for an unfair dismissal remedy discloses that she started working for the Pharmacy on 31 October 1988. 1 The employer’s submissions indicate that Ms Callaghan was employed as a part time pharmacy assistant.2 The circumstances of Ms Callaghan’s termination of employment are set out within her witness statement.3 They indicate that on 18 August 2014 at approximately 6:00 pm, when Ms Callaghan was on shift at the Pharmacy, she decided to print some photos on the Pharmacy’s photo machine and entered a key code into the machine to facilitate the printing.

[7] Ms Callaghan processed the photos and printed a docket with details of the cost of the printing, which amounted to $6.60. Ms Callaghan put the photos on the bench behind the desk and, according to her witness statement, she intended to ask another person to put the docket through the till the following morning. 4 However, for a variety of reasons, this did not occur. Ms Callaghan left the photos on the bench where she had placed them earlier.5

[8] On 19 August 2014, when Ms Callaghan was on shift, she picked up the photos. According to her witness statement, later that day she asked another staff member if she would mind putting some things through the till on her behalf. 6 According to the evidence, that did not occur.

[9] Subsequently, it came to the attention of the employer that Ms Callaghan had not paid for the photos. This was drawn to the attention of the employer on 23 August 2014, a Saturday. On the same day, Ms Callaghan was telephoned at home by Mr Yu. He told her that with reference to the photo processing and failure to pay for the photos, Ms Callaghan’s actions were not in line with company procedure. 7 Ms Callaghan’s witness statement indicates that on the following day, Sunday 24 August 2014, Mr Yu rang Ms Callaghan again and informed her that he had interviewed three staff members and he was convinced Ms Callaghan had taken photos without paying for them or having the matter put to her account.8 The employer submitted that in addition to this being said to Ms Callaghan during the telephone conversation, Mr Yu indicated to her that she would be dismissed as a consequence. Ms Callaghan denies that that is the case, and argues that the first that she heard about there being a termination of employment was on the following day, Monday 25 August 2014 at about five p.m. when Mr Yu came to Ms Callaghan’s house and gave her a letter of termination.

[10] The letter of termination is dated 24 August 2014, and advises Ms Callaghan that her employment is terminated with immediate effect. The letter states:

“[Y]ou were advised of my concerns regarding your disregard for Pharmacy policy and practice in relation to the processing of personal photos for your own use and benefit and deliberately without payment”. 9

[11] The Applicant’s submissions debate whether the termination of employment took effect on 25 August 2014 (being the date upon which Ms Callaghan gave evidence that she was informed of her dismissal) or 24 August 2014 (being the date referred to in the letter of termination, and also the date specified in Mr Yu’s submissions that Ms Callaghan was informed of the termination). The submissions indicate that in any event, the issue is somewhat immaterial for the purposes of making a determination about an extension of time, for the following reason. If the date of termination was 24 August 2014, the last date for the making of an application for unfair dismissal remedy would still be Monday 15 September 2014 as the 21^st day after the date on which dismissal took effect (if in fact it was 24 August) would be a Sunday, being a date upon which the Commission is closed. Therefore, the actual last day of the making of an application within time would still be Monday 15 September 2014.

[12] Since Ms Callaghan was informed of her termination on Monday 25 August 2014, and because of the circumstances of the evidence before me, I find that Ms Callaghan’s employment came to an end on 25 August 2014, being the date both upon which the dismissal took effect and the date on which she was notified of the dismissal. As I have recorded, Ms Callaghan filed her application for unfair dismissal in the Fair Work Commission on Monday 22 September 2014.

[13] Section 394(2) of the Act provides 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. The 21 days for lodgement does not include the date that the dismissal took effect 10. As a result, the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day11. Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.

[14] In the circumstances of Ms Callaghan’s dismissal, an application for unfair dismissal should therefore have been made no later than Monday 15 September 2014. I find that her application was not made within the 21 day period allowed by the Act, being seven days out of time. As a result, it is necessary for me to consider whether a further period should be allowed to Ms Callaghan for the making of an unfair dismissal application.

Legislation

[15] Relevant to the Commission’s consideration of the above question are the provisions of s.394 of the Act which provides the following;

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

[16] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[13] In summary, the expression “exceptional circumstances” 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”.  12

Consideration

[17] I turn to consider in detail whether I am satisfied that there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, and in particular, I address each of the criteria set out in subsection 394(3) of the Act.

1. The reason for the delay (s.394(3)(a))

[18] The evidence indicates that Ms Callaghan was distressed in the first week following her dismissal, and her evidence in hearing indicated that initially she was physically and emotionally unable to deal with the dismissal. The evidence also indicates that Ms Callaghan relied extensively upon Ms Jeneanne Harper (a close friend of the Applicant) for assistance. Ms Harper also gave evidence in these proceedings, and her evidence corroborates that of Ms Callaghan’s generally in the sense of Ms Callaghan relying upon her to provide assistance.

[19] The evidence also indicates that Ms Callaghan, together with Ms Harper, commenced the process in respect of seeking a remedy for unfair dismissal on or around 10 September 2014, at which time a telephone call was made to the Commission. The evidence indicates that the Commission representative made it clear to Ms Callaghan that there was a time limit for the lodging of unfair dismissal applications. The evidence suggests that as a consequence of that advice, Ms Callaghan together with Ms Harper, took certain steps to contest the dismissal including contacting the Commission directly regarding the application process, and accessing the Commission website to download the relevant application documentation. 13 I rely upon this evidence, which is broadly corroborated by the oral testimony given during the hearing.

[20] An objective view of that evidence would indicate that Ms Callaghan, together with Ms Harper, encountered some difficulties in lodging the application. I am satisfied though that they endeavoured diligently to do so to the best of their abilities, but there were a combination of factors which then caused problems for them. Those problems include difficulties associated with emailing the original application, together with difficulties associated with obtaining the correct address to which the hard copy of the application was to be mailed, and then thirdly difficulties associated with the mail and delays transmitting the hard mail through to the Commission. The evidence indicates that in any event, the hard copy of the application was incorrectly addressed to the Fair Work Ombudsman.

[21] It appears from the evidence that the emailed or electronically filed application may not ever have been received by the Commission, although I do not conclusively find either way. In respect of the hard copy application, it appears that the application was dated 11 September 2014. The evidence shows that the hard copy of the correspondence was likely sent to the Fair Work Ombudsman on 18 September 2014, which is a Thursday. The hard copy information then indicates that the Fair Work Ombudsman mailed the correspondence to the Commission on 19 September, and that the document was received in the Commission on Monday 22 September 2014.

[22] After considering the evidence given by the Applicant in this matter, together with that of Ms Harper and also the submissions of both parties, I am satisfied that the reason for the delay was a combination of the following two factors:

• The distress which Ms Callaghan encountered, which is also attached to her psychological condition; and



• The difficulties that she found in emailing a hard copy of the application to the Commission.

[23] In relation to Ms Callaghan’s health, I am satisfied from the evidence that it is reasonably likely that her personal circumstances prevented her from taking action for the first week at least, and that she and Ms Harper attended to the matter some time later. While the date of the first phone call to the Commission about the subject was on 10 September in the third week, I think the evidence overall supports this delay at least in the mind of Ms Callaghan and Ms Harper and what was going on in their lives around that period as being not unreasonably disconnected with the time taken for Ms Callaghan’s health to rebound sufficiently for her to progress her application. The provision of the application in both electronic and hard copy form, together with the difficulties that Ms Callaghan and Ms Harper encountered, constitute a reason for the delay in the making of Ms Callaghan’s application which should be taken into account.

[24] As a result of these circumstances, I am satisfied the reasons for the delay in making an unfair dismissal application are (taken together) sufficient to warrant an extension of time.

2. Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[25] The second of the matters which needs to be taken into account is when Ms Callaghan first became aware of the dismissal, and particularly whether she first became aware of it after it had taken effect. On the basis of the evidence before me I am satisfied that Ms Callaghan first became aware of the termination of employment on the day that she was provided with a letter of termination. The Respondent’s case, as mentioned above, is that she may have been told this on Sunday 24 August. However, Mr Yu did not give evidence, so it is not possible at this stage to conclusively determine the issue. In any event, it puts the dispute clearly only one day apart.

[26] The result of my consideration of this matter indicates that broadly speaking, Ms Callaghan was aware of the dismissal when it took effect.

3. Any action taken by the person to dispute the dismissal (s.394(3)(c))

[27] In relation to the third of the criteria, the actions taken by Ms Callaghan consists of the actions she took in conjunction with Ms Harper. The evidence does not disclose any further action.

4. Prejudice to the employer (including prejudice caused by the delay) (s.394(3)(d))

[28] While there has been prejudice and disruption to the employer already with these proceedings, it is acknowledged of course that there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits hearing with respect to the information that has been put forward thus far is not likely to bring forward much additional material to be considered by the Commission. That is, the matters in contest appear to be already well understood by the parties, and it is not a case where evidence or witnesses will be unavailable if the matter proceeds.

5. The merits of the application (s.394(3)(e))

[29] The merits of the application to which I must have regard are whether or not on the limited evidence I’ve seen to date discloses a likely unfair dismissal. The case against Ms Callaghan in this regard consists of the allegations of misconduct in respect of the circumstances with the processing of photos and the failure to pay for them. In addition, the employer’s submissions disclose that there may well be other issues brought against the Applicant. 14 Relevantly, the Respondent submits that the Applicant had been engaging in a number of behaviours that were in breach of the Pharmacy policy and procedures. The Respondent says that the improper processing of photos was only one example of the increasingly dishonest behaviour that the Respondent had been alerted to by other staff.

[30] In respect of Ms Callaghan’s case, the Applicant argues that her dismissal would be harsh, unjust or unreasonable. Ms Callaghan puts forward particularly that she is not aware of the policy regarding the processing of personal photos as being explicitly dealt with in the company’s policies. She also puts forward that she honestly intended to make payment for the photos and did so at the point that she became aware that there was a problem.

[31] I am not able to make any determination at this stage about the merits of the matter, for the reason that I have not heard all the evidence. However, the evidence provided during the hearing discloses an arguable case for Ms Callaghan, particularly in respect of two matters. The first of those is whether there has been a valid reason established on the part of the employer for the Applicant’s termination, and that goes to whether or not the information available to the employer was sufficiently grounded for it to become a valid reason within the terms that the Commission would ordinarily consider. The second of the matters relates to procedural fairness, and the Applicant has put forward certain submissions in respect of the potential failings on the part of the employer in this regard. I draw from those submissions that the Applicant was not aware of the allegations in great detail before the telephone call from Mr Yu on Saturday. While Ms Callaghan became aware at that point about the allegations, she was not part of the process to investigate the allegations, and she was not herself formally part of that process of investigation. The Applicant further contends that she was not given adequate opportunity to respond to the allegations or to have her views taken into account before the employer made a decision. I emphasise that I am not making any determination at this stage about whether or not there was a valid reason for termination, or whether or not there were failings of procedural fairness, but rather I am putting forward that on the evidence thus far provided it appears to me those things may well form the basis of an arguable case on the part of Ms Callaghan.

[32] In addition to these observations about the merits of the matter, I take into account the long service of Ms Callaghan with the Pharmacy, and also her age, which may be issues to be taken into account by the Commission in the event that the merits of the case were to be considered. The combination of these factors mean that in the event it is found there was no valid reason for the dismissal, or there were failings relating to procedural fairness, the dismissal may well be found to be either harsh, unjust or unreasonable. As noted by Vice President Lawler in the case of Sexton v Pacific National (ACT) Pty Ltd:

“Relatively advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service”. 15

6. Fairness as between the person and other persons in a like position (s.394(3)(f))

[33] The Commission’s consideration in respect of this criterion is a consideration of Ms Callaghan’s situation in comparison to other persons who may have been dismissed and who seek to make an application for an unfair dismissal remedy. This subsection invites a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.394, and, relevantly whether it would be fair to that class of person in the event that Ms Callaghan’s application was permitted to be filed late.

[34] Having considered the evidence and the submissions to date I do not think this becomes a factor against Ms Callaghan.

Conclusion

[35] As a result of the above considerations, and in particular the factors I’ve referred to in respect to the reason for the delay and the potential merits of the application, I considered it appropriate to grant an extension of time in this case. Accordingly, on 24 October 2014, I issued an Order pursuant to section 394(2)(b) of the Act that the time period for the Applicant to make an application for an unfair dismissal remedy be extended to 22 September 2014. 16

COMMISSIONER

Appearances:

Ms Z Gannon (solicitor) for the Applicant

Ms N Fowler (Pharmacy Guild of Australia) for the Respondent

Hearing details:

2014.

Melbourne:

October, 24

 1   Form F2 - Unfair Dismissal Application dated 22 Septem ber 2014, item 1.1.

 2   Respondent’s Outline of Submissions dated 22 October 2014, para 8.

 3   Exhibit A3, paras 5 - 17.

 4   Ibid para 6.

 5   Ibid, para 6.

 6   Ibid, para 8.

 7   Ibid, para 11.

 8   Ibid, para 13.

 9   Ibid, attachment JC-1.

 10   Acts Interpretation Act 1901 (Cth), s.36(1)

 11   Ibid, s.36(2); see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593

 12   Nulty v Blue Star Group[2011] FWAFB 975, 203 IR 1, at [13]

 13   Exhibit A3, paras 23 - 29; Exhibit A1, paras 18 - 21.

 14   Respondent’s Outline of Submissions dated 22 October 2014, paras 35 - 37.

 15   Sexton v Pacific National (ACT) Pty Ltd (unreported, 14 May 2003, PR931440) at [36].

 16   PR557055.

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