Sarah Batterham v The Chemist Cessnock T/A the Chemist Cessnock

[2020] FWC 4053

[2020] FWC 4053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Batterham
v
The Chemist Cessnock T/A The Chemist Cessnock
(U2020/8904)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 3 AUGUST 2020

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

Introduction

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

[2] The Applicant’s employment with The Chemist Cessnock (Respondent) was terminated with effect from 25 May 2020. The unfair dismissal application was lodged on 29 June 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 June 2020. The application was therefore filed 14 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] The Applicant gave the following explanation for the delay in her email communication to the Commission dated 13 July 2020:

“The reason I lodged the application after 21 days is because I have messages from the respondent that stated as soon as a vacancy popped up in their store they would let me know. Since then they have hired new staff and have not given me an opportunity to work there again. Hence why I did not lodge this application. In the hope that I would be considered for their vacancies. Since that’s not apparent I assumed I wasn’t going to be considered for any future roll and lodged my application. Since being pregnant and not being able to work during COVID at the time and having a doctors note to cover such dates it has hindered me to find anymore work being halfway through my pregnancy companies aren’t willing to hire me for a short few months without having to be replaced during maternity leave.”

[11] The Applicant also gave oral evidence to the following effect:

•  The Applicant was absent from work for a period of about six weeks leading up to 25 May 2020 because she was pregnant and therefore had a higher risk in connection with COVID-19.

•  At 12:03pm on 25 May 2020, Mr Sam Ghobrial, owner of the Respondent’s business, sent a text message to the Applicant in the following terms:

“Hi Sarah

Sorry for not coming back to you earlier.

I had to hire a new girl to cover your shifts during the hectic time in March April.

I’ll let you know once I have a vacancy again.

Thanks”

•  Later on 25 May 2020, the Applicant sent the following text message reply to Mr Ghobrial:

“Hi Sam,

Is the new girl Emily? Because if that’s the case she wasn’t hired for my Position as I have worked for her. It doesn’t seem fair that I haven’t been the only one to have time off during an unsafe time in my pregnancy and have had a doctors note to cover such things. So I’ll be seeking advice as to where I stand.

Thanks”

•  In the week after 25 May 2020, the Applicant obtained legal advice. She was also told she may want to wait and see if Mr Ghobrial gives her a further opportunity to work in the business. She was also told she had 21 days from 25 May 2020 to bring her unfair dismissal claim. The Applicant then waited to see if the Respondent would offer her further work.

•  On 29 June 2020, another employee who works for the Respondent told the Applicant that the Respondent was conducting interviews and trials for new workers. The Applicant subsequently became aware that the Respondent employed a new pharmacy assistant on 10 July 2020. That was the same role the Applicant worked in for the Respondent.

•  The Applicant is not aware of the Respondent employing any new employees in the period between 25 May 2020 and 29 June 2020. It was after the Applicant was told on 29 June 2020 that the Respondent was conducting interviews and trials for new employees that she decided to complete and lodge her unfair dismissal application later that day.

[12] I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. The Respondent informed the Applicant that a new employee had been hired to replace her in her absence. The Applicant thought that did not “seem fair”, but she made an informed decision not to lodge her unfair dismissal application or otherwise challenge her dismissal and instead decided to wait and see whether she would be offered new work by the Respondent. There is logic and sense in the approach that the Applicant took, in that it gave her the best chance of being offered further work by the Respondent, but it does not provide her with an acceptable or reasonable explanation for the delay.

[13] This case is distinguishable from other cases in which an employee is dismissed on the grounds of redundancy and then the employee discovers after the 21 day period following their dismissal that their employer has employed, or is advertising for, a new employee in their position. The late acquisition of such knowledge calls into question whether or not the employee’s position was truly redundant and may provide a reasonable explanation for the delay in filing the application. In the present case, the reason given to the Applicant for her employment coming to an end was not the redundancy of her position; the Respondent needed to hire a new employee to do the work that the Applicant had been doing, as a casual employee, prior to her six week absence from work in the period leading up to 25 May 2020.

[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 25 May 2020 and the dismissal took effect on the same day. The Applicant 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] On about 25 May 2020, the Applicant engaged in text message communication with the owner of the Respondent’s business, raising concerns about a new employee being hired and being dismissed while she was pregnant. I consider the sending of this text message 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. The Applicant contends that she was dismissed because she was pregnant and had to take time off due to illness, for which she provided medical certificates, during her pregnancy. The Applicant also points to the later hiring of another employee in her position as part of the unfairness of her dismissal.

[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:

Ms Batterham on behalf of herself

Mr Flaherty, of counsel, on behalf of the respondent

Hearing details:

2020.
Newcastle (by telephone):
29 July

Printed by authority of the Commonwealth Government Printer

<PR721493>

 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]