The dismissal: application denied

legal law case justice crime

A pharmacy assistant who was made redundant during the peak of the COVID-19 pandemic said she felt discriminated against because of her age

The pharmacy assistant’s employment was terminated with effect from 25 March 2020, the same day she was informed about it, with her employer contending that this was due to redundancy.

She lodged an unfair dismissal application outside the prescribed 21-day period for doing so, on 17 May 2020.

Under the Fair Work Act, the assistant had until midnight on 15 April 2020 to apply for an unfair dismissal remedy.

However she asked the Fair Work Commission to grant a further period for application, which the former employer, a NSW pharmacy, opposed.

The Act allows for such an extension if there are “exceptional circumstances,” which do not need to be unique, unprecedented or rare, but which do need to be out of the ordinary in order to be accepted.

In her unfair dismissal application, the pharmacy assistant gave an explanation for the delay.

“I had to wait almost two weeks to find out if I was entitled to any pay out,” she said. “And I was unaware I was entitled to argue unfair dismissal as I received a redundancy payout.”

In a June 2020 email to the Commission, she said that it took two to three weeks to find out what  entitlements were in her last payout.

“At this time I was very stressed, shocked and upset to have been made redundant,” she said.

“I was employed… for numerous years and thought I had a good relationship with the owners. I am good honest worker (sic) and did not see being made redundant coming as there was no warning given.”

She also said that “it took a while to get my head around what was happening not to mention all the other craziness going on in the world with the Corona virus”.

“It especially upset me when they had just recently employed new staff who have kept their positions there.

“I feel discriminated against due to my age and what is was currently happening in the world with the Corona virus that they simply ‘couldn’t fit me into the roster anymore’.

“They should have just reduced everyone’s hours to keep it fair and keep everyone in a job. I am have at present had no luck in finding new employment (sic).”

At a hearing regarding the extension of time for application, she said she was not aware of the 21-day time limit until she spoke to another person several days before she completed her unfair dismissal application.

Before filing it, she had applied for a waiver of the application fee to lodge the claim, which was not successful.

She had also tried on several occasions to contact a director of her former employer, to find out why she had been made redundant.

The pharmacy assistant’s application was rejected.

“Although I have sympathy for the Applicant’s circumstances, the distress, upset, shock and injustice she felt in connection with her dismissal did not prevent her from making an unfair dismissal application and do not provide an acceptable or reasonable explanation for the delay.

“Further, ignorance of the 21 day time limit is not, of itself, an exceptional circumstance and does not provide an acceptable or reasonable explanation for the delay.”

The Commission observed that the pharmacy had not complied with relevant consultation obligations regarding the dismissal, and that there had been a “strong prima facie case that her dismissal was not a genuine redundancy within the meaning of the Act”.

“The Applicant cannot understand why she was selected for redundancy when other employees were not, including a full-time employee in the same position as the Applicant who commenced employment shortly before the decision was made to dismiss the Applicant on the ground of redundancy,” the Commission noted.

“The Applicant is further not able to understand why she was not stood down for a period of time until after the COVID-19 restrictions had been lifted.

“The Respondent contends that other employees had their hours of work reduced as a result of COVID-19 and it had to make decisions quickly in a difficult environment.

“These issues involve contested questions of fact which would need to be tested if an extension of time were granted and the matter were to proceed.”

However, the circumstances around the late application could not be considered exceptional, the Commission found.

As a result, the pharmacy assistant’s application for an unfair dismissal remedy was dismissed.

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