Allison Shand v Pet Universe Administration Pty Ltd [2020] FWC 2782

1 Fair Work Act 2009 s.394—Unfair dismissal Allison Shand v Pet Universe Administration Pty Ltd (U2020/6840) DEPUTY PRESIDENT COLMAN MELBOURNE, 28 MAY 2020 Unfair dismissal application filed out of time – application dismissed [1] This decision concerns an application by Ms Allison Shand (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). [2] The Applicant’s employment with Pet Universe Administration Pty Ltd (Respondent) was terminated with effect from 24 April 2020. Her application was lodged on 18 May 2020. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or such further period as the Commission allows under s 394(3). The period of 21 days ended at midnight on 15 May 2020. The application was therefore filed outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request. [3] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. The meaning of this expression was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, where it was noted that, in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional. [4] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so. [5] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; [2020] FWC 2782 DECISION -- 1 of 5 -- [2020] FWC 2782 2 (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. Reason for the delay [6] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. [7] The Applicant cited several matters as reasons for the delay in lodging the application. She said that she had wanted to obtain advice about her dismissal, but there were long waiting times for appointments at the Working Women’s Centre (WWC) and Justice Net, and the advice she received from them, close to the 21 day deadline, was unclear. The Applicant then completed the F2 application form within the 21 day period. However, when she tried to lodge her application on Friday 15 May 2020, there was an error with her payment and she had ‘computer trouble’. The Applicant said that, as the Commission was not open on the weekend, she was not able to get through on the helpline. She filed the application on Monday 18 May 2020. The Applicant also contended that she was suffering from anxiety and depression. At the hearing, her representative referred to and read from a letter of referral from Ms Shand’s doctor to a psychologist, which stated that Ms Shand had reported feeling very depressed and anxious and was experiencing interrupted sleep. It also referred to medication she had started to take. [8] I am not persuaded that these matters provide an acceptable or reasonable explanation for the delay. It was the Applicant’s choice to seek advice from various sources, and to attend to lodgement close to the deadline. Unfair dismissal applications can be made without legal or other professional advice. Material to assist the general public in preparing and lodging applications is available on the Commission’s website. Further, although Ms Shand says that the advice that she received was unclear, she does not allege representative error. In addition, the doctor’s referral letter does not establish a link between Ms Shand’s medical problems and her failure to lodge the application within the 21 day period. I note that during the 21 day period Ms Shand was able to seek advice, and that she did in fact prepare and then belatedly lodge the application herself. Her condition did not prevent her from doing these things. [9] The nature of the payment error the Applicant encountered when trying to lodge her application online on 15 May 2020 has not been established. It is not clear why the Applicant did not then simply lodge her application by email. The possibility of lodgement by email is adverted to in advice on the Commission’s online lodgement service page. Moreover, had the Applicant attended to her application earlier, it could have been lodged by post. It was the Applicant’s choice to wait until the last day to try to lodge the application. -- 2 of 5 -- [2020] FWC 2782 3 [10] I do not consider the matters raised by the Applicant as reasons for the delay, individually or together, to be an acceptable or reasonable explanation for the delay. I do not consider these matters to be exceptional. The absence of an acceptable or reasonable explanation for the delay weighs against an extension of time. Whether the person first became aware of the dismissal after it had taken effect [11] The Applicant was notified of the dismissal on the same day that it took effect and had the full period of 21 days to lodge her application. This is a neutral consideration. Action taken to dispute the dismissal [12] The Applicant submitted that she disputed the dismissal by contacting her union and seeking advice with the WWC and Justice Net. In my view, seeking advice about the dismissal does not amount to disputing it. Even if this did constitute ‘action to dispute the dismissal’, I would attribute it minimal weight. Prejudice to the employer [13] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. But the mere absence of prejudice is not in my view a factor that would tell in favour of the grant of an extension of time. If it were to be regarded as such a factor, I would attribute it little weight. Merits of the application [14] Section 396 requires the Commission to consider whether an application was made within the 21 day period before considering the merits of the application. Nevertheless, s 394(3) requires the Commission to take into account the merits of the application in deciding whether it is satisfied that there are exceptional circumstances. [15] The parties’ contentions in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here. Briefly, however, the Applicant states in her application that she was dismissed for refusing to take a urine drug test and for posing a health and safety risk to the business and employees. She contends that there was no lawful basis for the company to require her to take a drug test in the circumstances, and that her manager initially agreed to defer the drug test, but then changed her mind. She further contends that the decision to dismiss her was harsh, given the consequences that her dismissal may have for her visa status, which may in turn result in her having to leave Australia. [16] The Respondent contends that it was entitled to request the Applicant to undertake a drug test based on its reasonable suspicion that she was under the influence of illicit drugs. The Respondent says that its requirements of employees in relation to drug testing are set out in its employee handbook, which states that it has a zero tolerance of drugs and alcohol. The Respondent says that the Applicant admitted at the time that, if she took the test, she would record a positive result. It considers that her drug use was affecting her at work, and that this was a serious breach of its policies. The Respondent says that the application has low prospects of success. -- 3 of 5 -- [2020] FWC 2782 4 [17] The merits of the application will turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact. In light of this, and based on the limited material before me, I am not able to make any firm assessment of the merits. I consider that the Applicant has at least an arguable case, and the Respondent a prima facie defence. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration. ‘Fairness as between the person and other persons in a similar position’ [18] In her written submission in support of an extension of time, the Applicant submitted that the consideration of ‘fairness as between the person and other persons in a similar position’ weighed in favour of an extension. She said that the COVID-19 pandemic had hindered her efforts to obtain advice, and that she was very concerned about her visa status following her dismissal. She emphasised that she had been prescribed medication for depression and anxiety for the first time, and that she has been under stress because of her visa situation. [19] I do not consider these matters to relate to the consideration of ‘fairness as between the person and other persons in a similar position’. They rather concern the Applicant’s particular circumstances. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position, and I consider this to be a neutral consideration in the present matter. [20] However, I have considered these matters as part of my overall deliberations on whether there are exceptional circumstances. In this regard, I note that a dismissal often gives rise to questions about a person’s visa status and is also very frequently the cause of anxiety and distress. These are difficult circumstances, but they are not exceptional. Conclusion [21] Having regard to the matters I am required to take into account under s 394(3), I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis for me to allow an extension of time, and I decline to do. The application is therefore dismissed. DEPUTY PRESIDENT Appearances: Mr C Stevens for Ms Allison Shand Mr L Holland for Pet Universe Administration Pty Ltd Hearing details: 2020 Melbourne (by telephone to Adelaide) -- 4 of 5 -- [2020] FWC 2782 5 27 May Printed by authority of the Commonwealth Government Printer <PR719705> -- 5 of 5 --