‘Very, very lengthy delay’ torpedoes unfair dismissal case

While there was merit to be found in a pharmacy staff member’s application for unfair dismissal remedy, she had applied 242 days too late…

The pharmacy assistant had worked for the pharmacy in North Melbourne for about eight years when she received her letter of termination, which indicated that dismissal took effect on 11 December 2019.

She was paid four weeks in lieu of notice, and ultimately paid redundancy entitlements.

However the former staff member lodged her application for unfair dismissal remedy on 30 August 2020.

Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, confirmed the Fair Work Commission in responding to the case. Based on the termination date, the pharmacy assistant’s application should have been lodged no later than 2 January 2020.

“The application was made in effect 242 days after the last day on which it could have been made,” said Commissioner Tim Lee. “This is a very, very lengthy delay … that is a factor that weighs against the applicant.”

The former staff member argued that there were number of reasons for her delay, in an effort to convince the Commission to allow her application for unfair dismissal remedy outside the usual timeframe due to exceptional circumstances.

Firstly, she said she had been constantly needing to communicate and follow up regarding her final payout, and additionally she was “exhausted and down and depressed” from trying to get the payout of her redundancy leave finalised.

Commissioner Lee found that the pharmacy assistant, immediately after she was dismissed, was contesting “with good reason it would appear” her redundancy entitlements for a couple of weeks.

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. She stated that after having a long think about it, she felt that she was unfairly dismissed.

Additionally, the former staff member said she had been engaged in a dispute with her landlord in regard to property maintenance at her rented premises. She also said that during May this year, she underwent surgery and attended several specialist appointments.

Altogether, “she felt she had a lot going on around the time of losing her job, such that her mind was jumbled and fried”.

The applicant indicated that she was in contact with the Commission and Victoria Legal Aid. However while she spoke with a lawyer from Victoria Legal Aid on 17 December 2019 – who suggested she submit an unfair dismissal application – she did not attempt to lodge an application for unfair dismissal at that time, nor any other time until August in 2020.

Commissioner Lee was not satisfied that any of the reasons provided were acceptable reasons for the delay.

“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 [due to surgery],” he said.

Based on the limited evidence before him, the Commissioner found that it was possible – even “likely” – that the former staff member’s dismissal was not a genuine redundancy given the apparent failure to consult as required by the Pharmacy Industry Award. She had given sworn evidence that there was no consultation whatsoever with her as to the redundancy, and her former employer did not cross-examine her at all on that evidence.

“Indeed, there may well be a strong claim, and that that certainly weighs in favour of the applicant,” said Commissioner Lee.

However considering all factors, and with no acceptable reasons for the application delay, he was not satisfied that there were exceptional circumstances in the case warranting an extension of time.

The application for an unfair dismissal remedy made by the pharmacy assistant was dismissed.

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1 Comment

  1. Karalyn Huxhagen

    while acknowledging the rules are there I acknowledge how difficult it is to put everything in place when your world has imploded. When I was made redundant it took a lot of hard fighting to gain my rightful payout. At the same time I was falling into the deepest black hole of depression and anger as 28 years of my life had just crumbled before my eyes and counted for zip. I was told I was too old, had been away from dispensing too long, past it and a hundred other barbs that tore at my soul. I was placed in a merry go round of terrible employers until I found my niche again. Without my family and peers I would never have been able to fight for my rights, I physically and emotionally had no ability to fight these battles without support. It is disappointing that the commissioner has no ability to apply empathy but sadly the law is the law.

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