The attached document replaces the document previously issued with the above code on 30 March 2016.

[2016] FWC 1975

Fair Work Act 2009_

s.365 - General protections

Bayrose Pharmaceuticals Pty Ltd T/A Wollongong City Pharmacy

Application to deal with contraventions involving dismissal.

[1] On 15 January Ms Tara Pogson (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Bayrose Pharmaceuticals Pty Ltd T/A Wollongong City Pharmacy (the Respondent).

[2] The Applicant commenced employment with the Respondent on 25 November 2015. She was a Pharmacy Assistant in the Respondent's pharmacy in Wollongong, New South Wales. She says that she was dismissed on 30 November 2015 and the dismissal took effect on that day.

[3] The application therefore was lodged 29 days out of time.

[4] The Applicant submits that she was dismissed because of her pregnancy in breach of s.351.

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was dismissed because performance and attitude issues which arose in the early days of her probation.

[7] Section 366 of the Act provides:

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

[8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony's Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

[9] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; [2010] 197 IR 403).

[10] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

"[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

'[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …'

[30] This extract must be read in its entirety. The decision goes on to state:

'[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.'

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach."

[11] On 28 January 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 16 March 2016.

[12] The Applicant was self-represented. The Respondent was represented by Mr Chris Mahoney of the Pharmacy Guild of Australia.

Matters to be taken into account pursuant to s.366(2)

[13] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

[14] The Applicant relies on medical grounds especially relating to her pregnancy to justify her lateness in filing. The evidence stops short of establishing that this would have prevented her from filing. There was no hospitalisation and, even on her own evidence she had recovered somewhat by the start of 2016.

[15] Accordingly, the reasons for delay cited by the Applicant fall short of establishing exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[16] There is no evidence of the Applicant taking other action to dispute the dismissal.

(c) Prejudice to the employer (including prejudice caused by the delay)

[17] Given the overall facts, the Respondent would be prejudiced by the time and costs involved in further litigation.

[18] The Respondent submits that the Applicant was dismissed as a result of her performance and attitude on her first shift as a casual. The Respondent denies that it was aware that she was pregnant. It also noted that it had a practice of accommodating pregnancy and parental leave in the pharmacy.

[19] I do not consider that the merits of the application give weight to the existence of exceptional circumstances.

(e) Fairness as between the person and other persons in a like position

[20] This factor was not addressed and has not been taken into account.

[21] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

Pursuant to s.587 of the Fair Work Act 2009 (the Act), the application made by Tara Pogson under s.365 of the Act is dismissed.

C. Mahoney with Z. Blandfort for the Respondent.

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