Sacked pregnant pharmacy assistant loses unfair dismissal


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A pregnant pharmacy assistant took time off work because of her COVID-19 risk, and was dismissed from her job

The pregnant pharmacy assistant had been absent from work in the six weeks leading up to her dismissal, because she had been at a higher risk in connection with COVID-19.

Fair Work heard that the pharmacy assistant’s employment had been terminated on 25 May 2020, effective that day.

The unfair dismissal application was lodged on 29 June 2020 because she was advised to wait and see if she could obtain employment there again.

The Fair Work Act states that an application for an unfair dismissal remedy must be made within 21 days of the dismissal taking effect, unless there are “exceptional circumstances”.

The worker said in an email to the Commission that the reason she had lodged her application after 21 days had passed was because she had messages from her former employer saying that as soon as a vacancy “popped up” in their store, they would let her know.

“Since then they have hired new staff and have not given me an opportunity to work there again,” she wrote. “Hence why I did not lodge this application. In the hope that I would be considered for their vacancies.”

She said that she had a doctor’s notes to cover the dates in question, but being pregnant has “hindered” her search for work.

“Being halfway through my pregnancy companies aren’t willing to hire me for a short few months without having to be replaced during maternity leave,” she wrote.

She had received a message on 25 May 2020 from her former employer which apologised for not getting back to her earlier and said, “I had to hire a new girl to cover your shifts during the hectic time in March April. I’ll let you know once I have a vacancy again”.

She replied asking who the “new girl” was, and said it did not seem fair that she was not the only one to have time off during an unsafe time in her pregnancy, and had a doctor’s note.

She obtained legal advice but was told she might want to wait and see if her former employer gave her another chance to work at the business, which she did.

On 29 June, another employee at the pharmacy told her the employer was conducting interviews and trials for new workers, and she later became aware that the pharmacy employed a new pharmacy assistant on 10 July – in her old role.

When she was told on 29 June that her former employer was conducting interviews for her role, she lodged her unfair dismissal application.

Fair Work was not satisfied that there were exceptional circumstances, and so did not grant an extension of time.

The application for an unfair dismissal remedy was dismissed.

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3 Comments

  1. Alan Dircks
    07/08/2020

    Sounds like she has an arguable case for discrimination which doesn’t have the 21 day time limit.

  2. Jarrod McMaugh
    09/08/2020

    how exactly can this not be seen as an exceptional circumstance if the reason she did not apply was because of advice from the employer that more work may be available; it seems that any employer could say this to an employee, which would have undue influence over their decision to take further action.

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