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Pharmacy Assistant Loses Unfair Dismissal After Waiting 242 Days

Pharmacy assistant loses unfair dismissal after waiting 242 days

A pharmacy assistant who was “likely” unfairly dismissed has lost her case because she took too long to file her claim.

The worker took 242 days before filing her claim in the Fair Work Commission, well outside the 21-day deadline.

Industrial advocates say the case is a reminder that strict time limits apply to unfair dismissal claims.

Pharmacy assistant loses unfair dismissal

The woman worked for a pharmacy in North Melbourne for eight years.

Her employer told the worker her position had become redundant effective 11 December 2019.

Her employer paid her four weeks in lieu of notice, in addition to some redundancy entitlements.

However, the pharmacy assistant waited until 30 August 2020 before filing a claim for unfair dismissal.


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Strict time limits

Applications for unfair dismissal must be filed with the Fair Work Commission within 21-days of the dismissal taking effect.

However, the Commission sometimes allows applications filed after the deadline if the worker can prove exceptional circumstances.

Commissioner Tim Lee noted:

“The application was made in effect 242 days after the last day on which it could have been made.

“This is a very, very lengthy delay … that is a factor that weighs against the applicant.”

Reasons for delay

The worker listed a number of reasons for the delay in filing her claim in a bid to have the Commission hear her case.

Firstly, she said she felt “exhausted and down and depressed” by having to chase the final payout from her employer. 

Secondly, she said she thought she would find suitable employment again, however, the pandemic made this difficult for her.

Thirdly, the former staff member said she had been occupied with a dispute with her landlord regarding property maintenance.

And finally, she 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”.


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What the Commission said

Commissioner Lee found the pharmacy assistant had contested, “with good reason it would appear”, her redundancy entitlements for a couple of weeks.

He also said that it is possible – even “likely” – that the former staff member’s dismissal had not been a genuine redundancy.

As it turned out, the employer failed to consult with the worker about the redundancy as required by the Pharmacy Industry Award.

However, Commissioner Lee ultimately decided none of the reasons given by the worker amounted to exceptional circumstances.

“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].”

As a result, he dismissed the pharmacy assistant’s application.


LEARN MORE

READ COMMISSIONER LEE’S FULL DECISION


The lesson

Industrial advocate Miles Heffernan says the case is reminder to workers that there are strict time limits when it comes to unfair dismissal.

“The Fair Work Commission rarely grants exemptions for workers who are late to file claims,” he said.

“The lesson is simple – contact us today if you believe you have been unfairly dismissed so we can file a claim on your behalf before it’s too late.”

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