Unfair dismissal application knocked back

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A pharmacist made an unfair dismissal complaint after he was fired for allegedly “sculling” leftover medicine… but he left it too late

In early September 2018, the pharmacist’s employment at a Queensland Chemist Warehouse was terminated while he was still in his probationary period of employment.

The senior HR advisor representing Chemist Warehouse head office and the store in question told a Fair Work Commission hearing that the pharmacist was terminated for “reasons of serious misconduct” based on his conduct.

Chemist Warehouse had CCTV footage of the pharmacist mixing prescription medication for a customer, which he then dispensed to the customer.

The footage showed him “sculling” the leftover preparation from the mixing bottle/vessel, the FWC noted.

Chemist Warehouse asserted that such conduct was contrary to legislation, contrary to the man’s professional obligations as a registered pharmacist, contrary to company policy, and contrary to the pharmacist’s contract of employment, both in terms of express and implied duties and obligations owed by the pharmacist to his employer, and noting the potential reputational impact on the employer if such conduct was not dealt with promptly by way of summary dismissal.

The pharmacist’s employment was terminated verbally and the pharmacist returned his keys and company property to Chemist Warehouse that day.

Chemist Warehouse confirmed the termination had taken place effective immediately, due to allegations of serious misconduct, in a letter to the pharmacist sent a few days after the dismissal.

Chemist Warehouse then made a notification to AHPRA about the alleged work conduct.

The pharmacist admitted that he had consumed the leftover medication, but said he was only doing so in order to taste it for reasons of quality and consistency.

He said he was entitled to do this as a qualified pharmacist, an assertion rejected by Chemist Warehouse.

The Commission noted that the pharmacist had made a number of complaints to his employer while he worked there, including making allegations of bullying; however it noted that there was nothing to suggest or identify any contraventions of the legislation of this nature by the employer.

The employer had also paid the pharmacist a week’s wages in lieu of notice, despite his dismissal being for reasons of alleged serious misconduct.

The pharmacist then lodged a general protections application under the Fair Work Act saying his termination of employment had been unfair – several months after the deadline to do so.

A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Fair Work Commission may allow.

To be within this deadline the pharmacist needed to have lodged the application by late September 2018, but he did not do so until January 2019.

The hearing took place to determine whether there were exceptional circumstances which meant the unfair dismissal application could still be heard.

The pharmacist submitted that Chemist Warehouse had not advised – or not adequately advised – him of the reasons for his immediate termination, and said he was not provided with a separation certificate until the 21 days had nearly run out.

He said he did not know about the 21-day time limit, and that Chemist Warehouse did not advise him about it.

He said he had been unwell, allegedly suffering from a depressive illness, throughout September 2018 and into early October, and had a medical certificate stating this.

The pharmacist also said that he had spent September and October engaging with and responding to AHPRA over the complaint his employer had made about his conduct in consuming the leftover medicine.

The Commission noted that the merits of the pharmacist’s application did not weigh in his favour, nor in favour of a finding of exceptional circumstances regarding missing the deadline.

The request for an extension of time was refused and the application dismissed.

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