Shari Schwalger v Community Care Chemist
[2021] FWC 933
| [2021] FWC 933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shari Schwalger
v
Community Care Chemist
(U2021/331)
| Deputy President Clancy | MELBOURNE, 19 FEBRUARY 2021 |
Application for an unfair dismissal remedy – application filed 2 days out of time – circumstances not exceptional – extension not granted – application dismissed.
On 13 January 2021, Mrs Shari Schwalger made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mrs Schwalger’s unfair dismissal application is Community Care Chemist.
While Mrs Schwalger had recorded in her Form F2 – Unfair Dismissal Application (Form F2) that her dismissal was notified and effected on 18 December 2020, it became apparent that her dismissal took effect on Monday 21 December 2020. 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). As Mrs Schwalger’s application for relief from unfair dismissal was lodged outside the statutory 21-day limit, the matter was allocated to me for the purposes of determining whether an extension of time for the making of her application should be granted.
I conducted a Determinative Conference on 19 February 2021 to consider Mrs Schwalger’s application for an extension of time for the filing of her unfair dismissal application. Mrs Schwalger appeared and gave evidence on her own behalf. Community Care Chemist was represented by its CEO, Ms Julie Sestan.
Legislation
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]
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.
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
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.[3]
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[4]
Mrs Schwalger submitted there were various reasons for the delay in filing her unfair dismissal application:
· she was fatigued, mentally exhausted, stressed and suffering extremely severe depression, such that she could not initially get out of bed following her termination;
· she had to wait until 8 February 2021 for a new Doctor to complete a report from a medical consultation that took place on 18 January 2021;
· she had to seek legal help and information;
· she has “never done this sort of thing before” and did not like doing it (i.e. she has never made a claim in the Commission before);
· she had no laptop computer and had to get a printer;
· she was waiting to hear back from the Police in relation to the incident that gave rise to her dismissal;
· she was working long hours in a new job; and
· there were various public holidays and times when “everything was shut”;
I accept Mrs Schwalger may have experienced some stress and a negative reaction as a result of her dismissal but this is not of itself unusual. Stress and anxiety from a busy workplace are not unusual and nor are shock and a degree of trauma uncommon reactions to dismissal. I have however noted that in support of her medical condition, Mrs Schwalger filed a GP Mental Health Treatment Plan dated 8 February 2021. This indicates that she first consulted a doctor post-termination on 18 January 2021. The Treatment Plan also outlined that Mrs Schwalger has an established history of stress and anxiety, for which she has previously seen Dr Tanya Harkness, a psychologist.
A letter from Dr Harkness dated 10 February 2021 was also provided and outlined that Mrs Schwalger:
· had been attending psychological counselling sessions since August 2017;
· had a history of depression and anxiety; and
· is a perfectionist who finds it difficult when she cannot perform to her expectations, with reports of rumination, sleep disturbance and negative mood.
As to why she did not see her psychologist until 10 February 2021, Mrs Schwalger said that there was a four-week wait.
I accept that Mrs Schwalger may not have had prior experience with unfair dismissal laws and processes or the Commission, but it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed.[5] Further, the evidence revealed Mrs Schwalger was able to conduct her own research via a google search during the 21-day time period, on or shortly after 28 December 2020. Mrs Schwalger’s evidence was that this led her to the Commission’s website. The website is replete with material designed to assist members of the public to prepare and lodge applications. It is evident that ultimately, albeit not until 13 January 2021, Mrs Schwalger was able to lodge her unfair dismissal application having obtained information from her internet search. I do not regard the lack of a laptop or printer provides an acceptable explanation for the delay as it is clear Mrs Schwalger had access to the internet and because the Commission’s website advises that an unfair dismissal application can be made online or by telephone.
As to Mrs Schwalger’s medical condition, I have noted that Mrs Schwalger did not consult a doctor until after she had lodged her application and that the medical evidence does not state that she was completely incapacitated during the initial 21 days following her dismissal, such that she could not have completed and lodged a Form F2. Rather, as outlined above, it would seem that during the 21-day time period following the date upon which her dismissal took effect, Mrs Schwalger was able to obtain information regarding the Commission’s unfair dismissal jurisdiction. Further, she was also able during that time to attend Victoria Police and give an interview in relation to the events that gave rise to her termination and secure and then work in new employment.
Having regard to the evidence before me, I do not consider there were circumstances within the 21-day period prescribed for making an application that provide a credible reason for the 2-day period of delay from 11 January to 13 January 2020 and nor do I consider there was an acceptable or reasonable explanation for the 2-day delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The evidence I heard in the Determinative Conference satisfies me that Mrs Schwalger was aware she had been dismissed effective 21 December 2020 and had the full period of 21 days to lodge her unfair dismissal application. This is therefore a neutral consideration.
Action taken to dispute the dismissal
It is apparent that during the process that lead to her termination, Mrs Schwalger sought to defend her actions leading up to and in the altercation with her colleague. There was very little contact between Mrs Schwalger and Ms Sestan following the termination, albeit in a text message exchange on 12 January 2021, Mrs Schwalger advised Ms Sestan that she would be taking action at “Fair Work”. To the extent these matters could be regarded as “action taken to dispute the dismissal”, I would attribute them minimal weight in the consideration of whether there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to Community Care Chemist if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of granting an extension of time. It is a neutral factor. Some decisions of the Commission take a different view and have held that the absence of prejudice weighs in favour of an extension. Even if I was to adopt this approach, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
Mrs Schwalger submits that her dismissal was unfair because she was verbally assaulted by her colleague and when no end was put to the abuse by the pharmacist on duty, she resorted to physical retaliation (which she described as a push)[6]. She asserts that she was never asked to make a statement and that there should have been a more thorough investigation into the incident. Mrs Schwalger also alleges that at the time of the altercation, she was stressed from her high workload and was also suffering from fatigue, which she had already reported several times.
The Respondent submits that the dismissal was fair as Mrs Schwalger physically confronted and attacked another employee in circumstances where it had a statutory obligation to provide a safe workplace for its employees and both employees had participated in training in October 2019 pertaining to appropriate workplace behaviour, principles of effective workplace relationships, conflict resolution strategies and effective communication skills. The Respondent claims that Mrs Schwalger did not deny assaulting her colleague.
The Respondent further submits that Mrs Schwalger provided her version of events via email following the incident[7] and that she was given a further opportunity to provide information at her interview on 18 December 2020.
Having examined the material and heard from the parties, I consider the merits Mrs Schwalger’s application turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of disputed fact. Based on the limited material before me, I am not able to make any firm assessment of the merits. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration.
Fairness as between the person and other persons in a similar position
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. While Mrs Schwalger has raised matters going to the merits her application, neither party has brought to my attention any relevant matter concerning this particular consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
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) of the Act 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.
Having regard to and weighed all the matters I am required to take into account under s.394(3), and all of the matters raised by Mrs Schwalger, 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, Mrs Schwalger’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
S Schwalger on her own behalf.
J Sestan for Community Care Chemist.
Hearing details:
2021.
Melbourne (via Microsoft Teams):
February 19.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[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] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
[6] DCB 65.
[7] Ibid.
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