Fair Work Act 2009
s.394—Unfair dismissal

Kim Joy Samsa
v
Belladia Pty Ltd T/A Wizard Pharmacy Joondalup Drive
(U2021/11432)

Termination of employment - jurisdiction - extension of time.

[1] Ms Kim Joy Samsa (Ms Samsa or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is the Belladia Pty Ltd T/A Wizard Pharmacy Joondalup Drive (the Respondent).

[2] The Respondent objects to the application on the grounds that it is lodged more than 21 days after the dismissal took effect, that the Respondent is a small business employer and complied with the Small Business Fair Dismissal Code and finally that the Applicant has lodged an unfair dismissal claim in the Western Australian Industrial Relations Commission (WAIRC) and continues to pursue that claim and so section 725 of the Act prohibits making this application.

[3] Ms Samsa was notified of her dismissal on 15 November 2021 and her dismissal took effect the same day. This application was made on 9 December 2021.

[4] The application has been made more than 21 days after the Applicant’s dismissal took effect.

[5] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[6] Consequently, on 16 December 2021 the Commission’s staff wrote to the Applicant explaining to her the requirements of section 394 of the Act and inviting her to provide any relevant evidence and submissions to assist the Commission in determining whether there were exceptional circumstances in this case.

[7] The Applicant responded by email on 5 January 2022.

[8] The Respondent objects to the Commission granting an extension of time and has filed submissions accordingly.

[9] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

The Applicant’s reason for the delay

[10] In her application Ms Samsa says that she was confused which Fair Work department to apply to. She says she did not realize there are different branches and was advised to apply federally.

[11] In her application she advises that she has made another claim to the WAIRC.

[12] In her further submission the Applicant says that since being dismissed she has had to move in with family. She says she had mistakenly applied to the WAIRC who she has heard are not helping people in these cases. She says it was only when discussing it with a friend later she realised she needed to apply to the Commission.

[13] She submits that she has been under extreme stress leading up to and since her dismissal. She is also helping to care for a family member who is a stroke victim.

[14] Unfortunately, it is not uncommon for employees who have been dismissed to be uncertain how to make an application for an alleged unfair dismissal claim. Confusion between this Commission and the WAIRC is also common. These are not an exceptional circumstances.

[15] It is also common that following dismissal there are economic consequences that necessitate employees changing their housing arrangements. It is also not unusual that employees will be stressed during a dismissal process and thereafter. Having carer responsibilities is also commonplace.

[16] These circumstances are not exceptional circumstances either individually nor taken together.

[17] In this case Applicant has not provided an acceptable reason for the delay in making her application.

Did the Applicant first become aware of the dismissal after it had taken effect?

[18] The Applicant was made aware of her dismissal when it took effect.

Action taken to dispute dismissal

[19] The Applicant did take other action to dispute her dismissal by making the application erroneously to the WAIRC.

Prejudice to the employer (including prejudice caused by the delay)

[20] I do not accept that there is any prejudice to the Respondent if a further period to apply was allowed.

The merits of the application

[21] In her application the Applicant explains the reason she was dismissed was failure to comply with the Western Australian COVID-19 mandate.

[22] The Applicant says her dismissal was unfair because the COVID-19 vaccine mandate is unlawful and unconstitutional and involves experimental medical treatment being called COVID vaccine which is on trial until 2023.

[23] The Applicant submits no accurate information has been given on the associated risks of the vaccine.

[24] Her employment contract did not require her to disclose personal medical information or undergo any medical procedures.

[25] Regarding its jurisdictional objections, the Respondent submits having already lodged an application in the WAIRC regarding her dismissal the Applicant is prohibited by section 725 of the Act from making this application.

[26] With respect to the merits of the application the Respondent says the Applicant was employed in its pharmacy as a Naturopath. In October 2021, the Western Australian Chief Health Officer issued the Primary Health Care Worker (Restrictions on Access) Directions (Directions) which applied to the pharmacy.

[27] Those Directions in summary required that a person providing services at the pharmacy be partially vaccinated against COVID-19 by 1 November 2021 and fully vaccinated by 1 December 2021.

[28] The Applicant was provided with a notice advising her of the requirements of the Directions and requiring her to confirm her vaccination status by 31 October 2021. The Applicant did not respond.

[29] Subsequently the Respondent says the Applicant notified her refusal to get vaccinated.

[30] The Respondent provided a letter to the Applicant advising that she was unable to lawfully engage in work at the pharmacy due to being unvaccinated. The Applicant was invited to participate in an online meeting on 15 November 2021 regarding her employment but failed to participate.

[31] Consequently, the Respondent opted to dismiss the Applicant having breached reasonable and lawful directions and being unable to lawfully engage in her work as a consequence of the Directions.

[32] The Respondent submits the dismissal was inevitable and not unfair because the Respondent is bound to obey the Directions.

[33] Considering all of the circumstances of this matter the Applicant’s case is weak. Even if she overcomes the jurisdictional objection, it is unlikely the Applicant will be able to prove that her dismissal was unfair given the obligations imposed on her and the Respondent by the Directions.

Fairness as between the person and other persons in a similar position

[34] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

[35] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering all of the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[36] Consequently, the Commission is not able to allow a further period for this application to be made. The application is not properly before the Commission and must be dismissed.

[37] An order [PR737435] to that effect will now be issued.

Final written submissions:

Applicant, 5 January 2022.

Printed by authority of the Commonwealth Government Printer

<PR737434>