REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Prue Marinelli
v
Bell Street Pharmacy
(U2020/11755)

Application for an unfair dismissal remedy – application filed outside of statutory timeframe – application for extension of time-extension of time refused.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 11 September 2020.

[2] This is an application for unfair dismissal remedy that Ms Marinelli (the Applicant) has made. The Applicant commenced employment with Bell Street Pharmacy (the Respondent) on or about 11 October 2011, and she was employed in the position of a pharmacy assistant level 2. The reason given by the Respondent for the decision to terminate the Applicant’s employment was redundancy, although I note that there was nothing in the letter of termination as to the reason for the dismissal. However, it appears on the evidence before me that ultimately the termination has been treated as a redundancy, and consistent with that, the Applicant was ultimately paid her redundancy entitlements.

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), and that application was lodged on 30 August 2020. The application was filed outside the statutory timeframe. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant says in her Form F2 that the dismissal took effect on 8 January 2020. I explored that claim with the Applicant today, in particular, pointing out that the letter of dismissal clearly indicated the dismissal took effect on 11 December 2019. The Applicant was paid four weeks in lieu of notice. However, she clarified in her evidence today that she did not work again for the Respondent after 11 December 2019. Therefore, I am satisfied the dismissal actually took effect on 11 December 2019. The Applicant doesn’t contest that point and that’s common ground with the Respondent.

[4] Based on the termination date taking effect on 11 December 2019 the application for a remedy should’ve been lodged by no later than 2 January 2020, that being the next working day after 1 January 2020 which would’ve been 21 days after the dismissal took effect. The application was therefore lodged outside of the time prescribed. The application was made in effect 242 days after the last day on which it could have been made.

[5] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[6] Before dealing with the evidentiary matters let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act the statute allows me to allow a further period but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[7] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are: the reason for the delay; whether the Applicant first became aware of the dismissal after the date it took effect; any action taken by the Applicant to dispute the dismissal; prejudice to the Respondent including prejudice caused by the delay; the merits of the application and fairness as between the Applicant and other persons in a similar position.

[8] These are the matters needs to be taken into account in assessing whether there are exceptional circumstances. A 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. The individual matters might not, viewed in isolation, be particularly significant so it is necessary also to consider the matters collectively and to ask whether, collectively, the matters show exceptional circumstances. 1

[9] 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 or unprecedented, nor do they need to be very rare. 2 I must be satisfied that, taking into account s.394(3) of the Act, that there are exceptional circumstances. I now consider these matters in the context of the application.

[10] Firstly, the 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

[11] In this matter the Applicant set out in her statement that was provided as sworn evidence today a number of reasons going to the delay, and I will just set those out in summary. The first, that she felt that she was constantly needing to communicate and follow up regarding her final payout. Secondly, that she was exhausted and down and depressed from trying to get the payout of her redundancy leave finalised. The Applicant indicated that she was in contact with the Commission and Victoria Legal Aid. The Applicant said that she spoke with a lawyer from Victoria Legal Aid and after telling him the story of what occurred he said that it sounded like an unfair dismissal, and that she should submit an unfair dismissal application.

[12] During the hearing today, the Applicant’s evidence was that the conversation she had with the lawyer from Victoria Legal Aid occurred on 17 December 2019. She also confirmed that notwithstanding that conversation with the lawyer at that time she did not attempt to lodge an application for unfair dismissal at that time, nor any other time until August in 2020.

[13] The Applicant said that she had been down and depressed since losing her job and that she was seeing a psychologist regarding counselling. The Applicant said that many things were happening at once, and that while she thought she would find suitable employment again, the COVID-19 pandemic has made the employment situation very difficult for her. The Applicant stated that after having a long think about it, she felt that she was unfairly dismissed.

[14] The Applicant also said that she has been engaged in a dispute with her landlord in regard to property maintenance at her rented premises, that she recently had to go to VCAT in regard to that, and also in regard to rent reduction claims.

[15] On cross-examination by the Respondent’s representative, the Applicant confirmed that she also contacted JobWatch some time in the three week period after her dismissal.

[16] The Applicant has also attached numerous documents attesting to a number of doctor appointments that she has had since she was dismissed. There is no need for me to go into that in any detail. The state of the evidence is that the Applicant conceded that she has had in the order of half-a-dozen specialist appointments since her termination, and those specialist appointments were in the order of two to three hours each, and she also had some surgery in May 2020. That surgery involved an overnight stay in hospital. She was discharged the next day. There was an instruction that she was not to engage in strenuous activity for two weeks after that, and prior to the surgery that she was required to administer some injections which caused some bruising.

[17] Finally, the Applicant’s evidence going to reason for the delay was that she felt she had a lot going on around the time of losing her job, such that her mind was jumbled and fried.

[18] My assessment of the reason for the delay is as follows.

[19] The Applicant, immediately after she was dismissed, was contesting, with good reason it would appear, for a couple of weeks, her redundancy entitlements. The facts as they are laid out to me was that the Respondent paid the Applicant four weeks additional pay but did not understand that they were required to pay redundancy pay in accordance with the NES, and so ultimately there was an exchange with the Applicant about that, and the Applicant’s evidence is that ultimately that that entitlement to redundancy pay was met.

[20] Importantly for my purposes there is no indication in that correspondence that the Applicant was considering lodging an unfair dismissal during that time, being those couple of weeks where she was engaged in the debate with the Respondent about her redundancy pay. Indeed, the Applicant confirmed in the hearing today that she did not attempt, at that time, to lodge an unfair dismissal application, nor did she attempt to lodge one up until she lodged one in August 2020.

[21] As I indicated, the Applicant’s evidence was that she had approached Legal Aid for advice about her redundancy pay. The Applicant stated that in the course of that she sought information from the lawyer from Legal Aid about her entitlement to redundancy pay, and that it was he who mentioned at that stage her prospects for an unfair dismissal remedy. Nevertheless, the Applicant did not choose to lodge or attempt to lodge an application at that time.

[22] Lack of awareness to the extent, and it is not clear, but to the extent that that is put as a reason for the failure to lodge in time, is not an acceptable reason. The precedents on that point are clear in decisions of the Fair Work Commission, and there is no reason for me to go to them. In any case, given the efforts that the Applicant had made to talk to Legal Aid and to Job Watch, there was no reason that the Applicant should not have been aware in any case of the requirements.

[23] As to the Applicant feeling down and depressed since losing her job, I am satisfied the Applicant was seeing a psychologist. However, there’s no evidence whatsoever that her psychological state would’ve prevented her from lodging a claim in the period. Indeed, in the relevant period she has been able to initiate contact and contest her redundancy pay, and for that reason alone I am not satisfied that the Applicant’s mental state is an acceptable reason for the delay.

[24] I have taken into account that the Applicant is having difficulty finding work now because of the rather shocking economic circumstances that have been driven by the pandemic and associated shut-downs, but that is not an acceptable reason for the delay, the fact that the pandemic has changed the employment environment some months after the dismissal. Bearing in mind, as the Respondent pointed out, that the state of emergency, at least in the State of Victoria, was not declared until March 2020, some considerable time after the dismissal. Consideration of that factor is not an acceptable reason for the delay.

[25] As to the property and landlord disputes, while their genesis may well have occurred during the year, the applications made to VCAT and so on are more recent and, in any case, there’s no evidence that they have taken up a significant amount of the Applicant’s time. Seen against the background of the significant delay, and the fact that the Applicant has been involved in those disputes are not acceptable reasons for the delay.

[26] In regards to the doctors’ appointments, I have taken into account the various specialist appointments the Applicant has had, half-a-dozen or so appointments for two or three years each from December to August. Again, this is really not an acceptable reason for the delay.

[27] I have taken into account the surgery that the Applicant had in May 2020. Bearing in mind that by May 2020 the application was already extraordinarily late, but even in that circumstance, the overnight stay in hospital and the circumstances around that surgery, which I have already described, would at best explain a week of delay, but that has to be considered against the fact that the surgery was taking place well outside of the statutory time period.

[28] Taking into account all of the evidence that has been led by the Applicant today in her materials and what she has given under oath today, the position in terms of reasons for the delay is that the application is 242 days late. The Applicant’s reasons for the delay that she has given are not, neither singularly nor collectively, acceptable reasons with the exception of approximately one week in May.

[29] In the circumstances, I am not satisfied the Applicant has provided an acceptable explanation for the delay, and that is a matter that weighs against the Applicant in this case. It weighs significantly against the Applicant in this case as there is a significant delay.

[30] Whether the Applicant first became aware of the dismissal after the date it took effect, it is apparent on the evidence the Applicant was well aware the dismissal took effect on 11 December 2020, and she has been aware since that time. There was no reason not to act on an unfair dismissal from that date in terms of lodging one, and in the circumstances that is a matter that weighs against the Applicant.

[31] In terms of action taken by the Applicant to dispute the dismissal, the evidence is that the Applicant corresponded with the Respondent after her dismissal contesting the quantum of her redundancy pay, and that was ultimately resolved and I dealt with that earlier. However, the Applicant did not take any action to dispute the dismissal at all during the 21 day period after her dismissal or in any period since, and the Applicant agreed that that was the case in her evidence today. In the circumstances that is a matter that weighs against the Applicant.

[32] In respect of prejudice, turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for extension of time. On this the Respondent submitted that the Respondent will suffer defending this application after such a significant period of time has elapsed. The Applicant did not make any particular submission in respect to prejudice.

[33] Generally, it is a matter in terms of prejudice for the Respondent to provide evidence, and no such evidence was led. However, this is a very, very lengthy delay. Having regard to the decision in Brisbane South Regional Health Authority v Taylor [1996] HCA 25, a long delay, as was said in that case, gives rise to a general presumption of prejudice. I am satisfied in this case that the length of delay gives rise to such a general presumption, and in the circumstances of this case, that is a factor that weighs against the Applicant in the instant case.

[34] As to the merits of the application, in cases such as this where the substantial merits of an application are not fully examined into or agitated it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.

[35] On that it seemed to me to be at least arguable that this is not as contended by the Respondent a genuine redundancy. Firstly, as was pointed out by the Respondent, further evidence would undoubtedly be led on this point. It is not entirely clear what the change in operational requirements were. However, I have taken into account that the Applicant understood that the change in operational requirements has given rise to those who were normally working out the back in the store area would in future attend in the store to attend to customers, and to that extent it may well be that the Applicant’s job is no longer required, but again that would be a matter for further evidence. More significantly it’s common ground that the Pharmacy Industry Award covers and applies to the Applicant and did at the time that she was dismissed. Therefore, the consultation obligations in that Award apply.

[36] The Applicant gave sworn evidence today that there was no consultation whatsoever with her as to the redundancy. In fact, that she was essentially called into the office, there was a discussion and her employment was terminated at that point. The Respondent’s representative did not cross-examine the Applicant at all on that evidence, and so that is the evidence before me.

[37] Just on that point, I note that the Respondent’s representative took a view that they would provide evidence on this point, and no doubt they may well do at a later time, but based on the limited evidence that I have, which I need to make an assessment of for the purposes of considering this criteria, the only likely conclusion, not a firm conclusion because I do not have all the evidence, but the likely conclusion would be that this is not a genuine redundancy given the apparent failure to consult as required by the Pharmacy Industry Award.

[38] For that reason it would seem to me to be at least arguable that, absent any other valid reason for the termination, it would be held to be not a genuine redundancy, and therefore it seems to me that the Applicant’s claim is, on a preliminary assessment only, not without merit. That is not to suggest that it will succeed, but I am satisfied there is at least some merit which would give the Applicant a justifiable reason to pursue her unfair dismissal. In the circumstances that is a matter that weighs in favour of the Applicant.

[39] As to fairness between the Applicant and other persons in a similar position cases of this kind would generally turn on their own facts. However, this consideration is concerned with the import of the application of consistent principles in cases of this kind thus ensuring fairness as between the Applicant and other persons in a similar or like 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.

[40] I can deal with this matter fairly quickly. The position is that the Applicant did not have anything to say about this point. The Respondent directed me to a matter in Warden v Pharmacy Excellence Marysville [2020] FWC 4713 which had significantly similar facts. I have considered that, but frankly it is not a relevant consideration. While there are some similarities in terms of the facts, bearing in mind that the Deputy President in that matter found that all of the factors either weighed against a finding of exceptional circumstances or were neutral, her findings were made on that basis. That’s not the same position here as on the issue of merits that is a factor that weights in favour of granting the extension of time.

Conclusion

[41] In conclusion, statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty.

[42] Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case in relation to the dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[43] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period.

[44] As I have indicated, and considering the reasons for the delay, I am not satisfied there is an acceptable reason beyond the one week alluded to earlier in May 2020, and for that reason this is a factor that weighs against granting the extension. The Applicant was well aware that she was dismissed on 11 December 2019, and consideration of that matter weighs against the Applicant. The Applicant took no action to dispute the dismissal. She did take action to dispute her redundancy pay, but no action to dispute the dismissal per se. That also weighs against the Applicant.

[45] As to merits, I am satisfied that, on a preliminary assessment, the claim is not without merit. Indeed, there may well be a strong claim, and that that certainly weighs in favour of the Applicant.

[46] As to fairness as between the Applicant and other persons in a similar position, in my view this is a neutral consideration. I have taken into account the other case referred to by the Respondent, but it is not entirely on point, and I consider that a neutral factor.

[47] Considering all of the factors, all of the factors other than merit are either weighing against the Applicant or are neutral. The only factor that weighs in favour of the Applicant is the merits of the application. While I do think that there is merit to the application, I have to balance that against all of the other considerations and, having done so, I am not satisfied that there are exceptional circumstances in this case warranting a consideration of the exercise of my discretion to allow a further period.

[48] Therefore, as I have indicated, as I am not satisfied there are exceptional circumstances, and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application, an extension of time is therefore refused, and the application for an unfair dismissal remedy made by the Applicant is dismissed.

[49] An order to that effect will separately be issued when the transcript is available. The wording of the decision ultimately, with some necessary grammatical corrections, will be published and the parties will be able to see a printed copy of the decision at that time.

COMMISSIONER

Appearances:

Ms P. Marinelli on her own behalf
Ms S. Newman on behalf of the Respondent

Hearing details:

2020
Melbourne
11 September

Printed by authority of the Commonwealth Government Printer

<PR723024>

 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]