Tanya Yerbury v TJX Australia Pty Limited
[2023] FWC 2473
•26 SEPTEMBER 2023
| [2023] FWC 2473 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tanya Yerbury
v
TJX Australia Pty Limited
(U2023/7521)
| DEPUTY PRESIDENT DEAN | CANBERRA, 26 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Ms Tanya Yerbury (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of her dismissal from TJX Australia Pty Limited (the Respondent). The Applicant had been employed in the position of Assistant Store Manager with the Respondent until her dismissal.
The Applicant says her dismissal took effect from 19 July 2023 and this application was lodged on 13 August 2023.
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 Applicant filed her application 4 days outside the 21-day period and so her application can only proceed if the Commission grants a further period for it to be made.
The matter was listed for hearing by telephone on 25 September 2023. The Applicant appeared and gave evidence on her own behalf. The Respondent was represented by its HR Manager, Ms J Ramaci.
For the reasons set out below, I find there are no exceptional circumstances and will dismiss the application.
Extension of time
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]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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 this application.
Consideration
Reason for the delay
The Act does not specify what reason for the 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 Applicant said the reason for the delay in lodging her application was that she did not receive anything in writing confirming her dismissal until 25 July 2023 when she received a Separation Certificate. She took the 21 day timeframe as commencing from the date she received the Separation Certificate.
The Respondent submitted that the Applicant’s reason is not an acceptable explanation.
Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging her unfair dismissal application. There is no dispute she was aware of the dismissal when it took effect on 19 July 2023 and her error in calculating the timeframe is not out of the ordinary or unusual.
This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant confirmed she was aware of her dismissal when it took effect. She was afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant did not take any action to dispute the dismissal until the present application was lodged. She said she was unable to do so because of her mental health and that she was “not in a good state”. There was no medical evidence to support this submission. This weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
The delay is relatively short and 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
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Respondent submitted there was a thorough investigation into an incident that occurred in store, in which the Applicant was alleged to have requested illicit drugs from another employee. The investigation found that the conduct occurred and the conduct breached the Respondent’s Code of Conduct and its policy on drugs in the workplace, and warranted the summary dismissal of the Applicant.
The Applicant submitted that her dismissal was unfair because she was not given any warnings and there had been no previous disciplinary issues. She also submitted that she was treated differently to the other employee with whom she had had the conversation about drugs. In the hearing she acknowledged the conversation was inappropriate but said it did not warrant dismissal.
A determination of the merits in this case will turn on facts which are contested. On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be 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 the Applicant suggested that the Respondent was trying to manage people it didn’t want out of the workplace, neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.
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, 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 is dismissed.
DEPUTY PRESIDENT
Appearances:
T Yerbury on her own behalf.
J Ramaci for TJX Australia Pty Limited.
Hearing details:
2023.
By telephone:
September 25.
[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].
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