Tennille Lewis v Woolworths Group Ltd

[2020] FWC 4764

[2020] FWC 4764

FAIR WORK COMMISSION

DECISION

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

Tennille Lewis
v
Woolworths Group Ltd
(U2020/11485)

COMMISSIONER MCKINNON MELBOURNE, 4 SEPTEMBER 2020

Application for an unfair dismissal remedy – effective date of dismissal – extension of time refused.

[1] Tennille Lewis was employed by Woolworths Group Ltd in its Kyneton store from 4 April 2017 until 9 December 2019.

[2] On 24 August 2020, Ms Lewis applied for an unfair dismissal remedy. There is a statutory time limit during which applications of this type must be made. The time limit is 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows. 1 In the present case, the application is more than 8 months late.

[3] The question is whether to allow additional time in which to make the application.

Extension of time

[4] Section 394(3) of the Act sets out certain factors that must be considered in deciding whether additional time should be allowed. These are 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 (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position.

[5] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. 2 The circumstances “need not be unique, or unprecedented, or very rare”.3

Relevant factors

[6] Reason for delay and actions taken to dispute the dismissal: Ms Lewis says she became aware of the dismissal on the day it occurred on 9 December 2019. She spoke directly to her union, the Shop, Distributive and Allied Employee’s Association. She says they were of no help and supported the store. As to the reason for delay, Ms Lewis says she did not know about the options available to her until she made some inquiries. She also suffers from anxiety and is receiving medical treatment. There is no medical evidence before me to demonstrate the relationship between Ms Lewis’ anxiety and the delay in bringing her claim. Neither of these matters are exceptional circumstances. They tend to support a conclusion that Ms Lewis has taken very few proactive steps to dispute her dismissal or even to research her options in that regard since the dismissal occurred in December last year. The conclusion is reinforced by her failure to attend the hearing in support of her application.

[7] Whether the person first became aware of the dismissal after it had taken effect: This is not a relevant consideration.

[8] Prejudice to the employer (including prejudice caused by the delay): The prejudice to Woolworths if the application proceeds is limited to the potential difficulty associated with bringing forward relevant witnesses so long after the event. However, it is a large organisation with a comprehensive record-keeping capacity. Prejudice in this case is a neutral consideration.

[9] Merits of the application: The merits of the application have not yet been heard or considered in any substantive way. At a prima facie level, serious allegations of theft are made against Ms Lewis and vehemently denied. The case is arguable each way. It is a neutral consideration.

[10] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons in a similar position to Ms Lewis is a relevant consideration.

Conclusion

[11] I am not persuaded that there are exceptional circumstances in this case such that additional time for the application to be made should be allowed.

[12] The application is dismissed.

COMMISSIONER

Appearances:

No appearance for the applicant.
K Hollings for the respondent.

Hearing details:

2020.
Melbourne (by telephone):
September 4.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].

 3   Ibid.