Piyangi Weerasooriya v Woolworths Group Limited

[2022] FWC 197

[2022] FWC 197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Piyangi Weerasooriya
v
Woolworths Group Limited
(U2021/11877)

DEPUTY PRESIDENT COLMAN MELBOURNE, 31 JANUARY 2022

Extension of time (s 394(3)) – application dismissed

[1] Ms Piyangi Weerasooriya has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). Her employment with Woolworths Group Limited (company) was terminated on 21 October 2021. Section 394(2) states that an unfair dismissal application 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 21-day period ended at midnight on 11 November 2021. The application was lodged on 20 December 2021, 39 days out of time. In order for Ms Weerasooriya’s application to proceed, she requires an extension of time.

[2] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are ‘exceptional circumstances.’ I adopt the broad approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness as between the person and other persons in a similar position.

[3] Ms Weerasooriya submitted that the reason for her delay in lodging the application was because of the time she had spent seeking a review of her termination, which had involved her making a series of telephone calls and sending various emails to the company. Ms Weerasooriya also submitted that the delay was caused or compounded by technical problems that she experienced with her computer when attempting to access copies of certain correspondence. She also said that she had been awaiting receipt of her separation certificate from the company, which was sent to her by post. I do not accept that Ms Weerasooriya has established an acceptable reason for the delay. The fact that Ms Weerasooriya was seeking to have the company review its decision to dismiss her was not a good reason to delay the lodgement of her application. Nor was it necessary for Ms Weerasooriya to obtain supporting documentation. This could have been provided later. I am not satisfied that Ms Weerasooriya has provided an acceptable or reasonable explanation for the delay. The matters she refers to are not exceptional. The reason for the delay weighs against an extension of time.

[4] The following matters are in my view neutral considerations. First, Ms Weerasooriya was notified of her dismissal on the same day that it took effect (s 394(3)(b)), and she therefore had the benefit of the full 21-day period to lodge her application. Secondly, there is no evidence of prejudice to the employer (s 394(3)(d)). Thirdly, I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Weerasooriya and other persons (s 394(3)(f)). I note that Ms Weerasooriya took steps to challenge her dismissal (s 394(3)(c)) by asking the company to review its decision, however I attribute this matter little weight.

[5] As to the merits (s 394(3)(e)), Ms Weerasooriya said that her dismissal for inappropriate conduct towards other employees was unfair and based on false allegations. She said that the investigation was procedurally flawed because she was not told who had complained about her, and the company overlooked the evidence of her witnesses. The company submitted that it had received complaints about Ms Weerasooriya speaking to her manager and co-workers in an aggressive and rude manner, which contravened its code of conduct, and that its investigation found the allegations against her to be substantiated. The company contended that dismissal was warranted, because Mr Weerasooriya had been warned about her behaviour in June 2021. An application to extend time is in the nature of an interlocutory application (see s 396). It is neither possible nor appropriate for the Commission to form any concluded view about the merits. In this case, the merits turn on disputed points of evidence that would need to be tested if an extension of time were granted. Much would depend on factual findings. I consider the merits of the application to be a neutral consideration.

[6] Having regard to the matters in s 394(3), I am not satisfied that there are 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 extend time. Ms Weerasooriya’s unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

P. Weerasooriya for herself

O. Fagir for the respondent

Hearing details:

2022

Melbourne

31 January

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