Tisha Lazaro v Green Hat Marketing Pty Ltd

[2024] FWC 2035

[2024] FWC 2035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Tisha Lazaro
v

Green Hat Marketing Pty Ltd

(U2024/7583)

DEPUTY PRESIDENT COLMAN MELBOURNE, 31 JULY 2024

No exceptional circumstances - no minimum employment period

1. Tisha Lazaro (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Green Hat Marketing Pty Ltd (respondent) objects to it on the basis that it was filed out of time. Section 394(2) requires applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant’s dismissal took effect on 19 September 2023. She filed her application on 2 July 2024, over 9 months later. In order for the application to proceed, the applicant requires the Commission to extend time. The Commission can only do so if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f).

1. As to the reason for the delay (s 394(3)(a)), the applicant submitted that following her dismissal she was suffering severe depression and was taking anti-depressants prescribed by her doctor. The applicant submitted a certificate of incapacity for the period 28 June 2024 to 11 July 2024. She also submitted a letter from her doctor dated 12 July 2024, which stated that the applicant had been dismissed in September 2023, that she ‘did not comprehend the situation well’, and that she thought that it was unfair. The letter stated that the dismissal was a traumatic event for the applicant and that it ‘led to aggravation of her feeling depressed and her drinking alcohol.’ It stated that the applicant’s depression had been getting worse despite being on medication and seeing a psychologist. The applicant submitted that within two weeks of her ‘comprehending the termination’s fairness (sic)’ she sought assistance and filed her application.

I am not satisfied that the applicant’s mental health condition prevented or seriously impeded the timely lodgment of her application or otherwise offers a reasonable explanation for the delay. As to the doctor’s letter, it is very general and does not offer a clinical explanation of how the applicant’s mental health condition might have affected her ability to lodge her application or seek assistance to do so. The applicant also said that she had been unaware of the 21 day lodgment requirement. But this is not a good reason for delay. Copious information is available to public on the Commission’s website.

1. In respect of the matters in ss 394(3)(b), (c), (d) and (f), I note the following: the applicant does not claim to have become aware of the dismissal after it took effect; there is no indication that the applicant took other action to dispute the dismissal; there is no apparent prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people in a similar position. These are neutral matters. On the merits (s 394(3)(e)), the applicant submitted that the respondent did not have legitimate reasons to end her employment and said that she was not provided with training or support. The respondent submitted that despite providing the applicant with feedback about shortcomings in her work, she showed no improvement over time and was eventually dismissed because of her poor performance. The merits would depend on factual findings made at final hearing. Based on the information before me, I consider the merits to be a neutral consideration.

1. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, I have no power to extend time. The application must therefore be dismissed, and I do so.

1. There is also a second reason why this application must be dismissed. At the hearing, I explained to the parties that in order to be ‘protected from unfair dismissal’, a person must have completed a period of employment with the employer of at least the ‘minimum employment period’ (MEP) (see s 382(a)). Unless the employer is a small business employer, the MEP is ‘6 months ending at the earlier of the following times: (i) the time when the person is given notice of the dismissal; (ii) immediately before the dismissal’ (see s 383). The applicant’s employment began on 20 March 2023. On 7 September 2023, the respondent’s managing director sent the applicant an email stating that her last day would be 19 September 2023. The dismissal took effect on 19 September 2023. It is clear that the applicant has not served the MEP. On the date when she was given notice of dismissal, 7 September 2023, she was some two weeks short of six months of service. The applicant submitted that she had served out her notice period and was dismissed on 19 September 2023, which was exactly 6 months after she commenced her employment, but the fact that she worked out the notice period is relevant. The minimum 6 month period ends at the earlier of the date when notice of dismissal is given, or immediately before the dismissal. As at that earlier time, the applicant had not served 6 months of employment with the respondent. She was therefore not a person protected from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

A. Schoenfeld for the applicant
K. McLagan for the respondent

Hearing details:

2024
Melbourne (by telephone)
31 July

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