Unfair Dismissal extension granted for level of “genuine struggle” rarely seen

A former retail employee has won the right to pursue her unfair dismissal claim despite lodging it 36 days late, with Deputy President Lake of the Fair Work Commission concluding that the assistant store manager had faced a list of challenges in filing her application within time, acknowledging she experienced “true hardship, genuine struggle the likes of which I do not often see”.

While stood down on pay in late-2019 during an investigation into alleged misconduct, the assistant store manager (ASM) produced medical evidence advising she had no capacity to work and could not participate in her employer’s show cause process. The ASM proceeded onto personal leave with the employer confirming the show cause process would not recommence until the employee returned to work.

In January 2020, the ASM failed to respond to her employer’s request for further medical advice as to the status of her capacity for work, nor did she reply to their show cause letter. The employer subsequently terminated the ASM’s employment by way of email on 28 January, in accordance with the ASM’s previous advice that she did not wish to be contacted by phone or post. The ASM did not become aware of her employer’s decision until her union (the SDA) contacted the employer in early-March, seeking to pass on an updated medical certificate on her behalf. The ASM instructed the SDA to lodge her unfair dismissal claim 20 days later on 25 March, 36 days beyond the 21-day time limit for lodgement.  

In accounting for the delay, the ASM produced compelling evidence identifying why she had not received the employer’s email of 28 January, including that she had experienced domestic violence, illness, homelessness, theft of property and a lack of funds, painting a picture of a personal situation that was “volatile and quite dire” and inhibited her capacity to respond effectively following her dismissal.

Following a significant incident of domestic violence in December 2019 and the securing of a temporary protection order, which was varied in January 2020, the ASM had obtained accommodation at a women’s refuge which did not provide Wi-Fi, while at the same time she was temporarily without a phone. In addition, the ASM submitted evidence of the theft of a vehicle which had contained her laptop, cash and prescription drugs on 21 January 2020.

The Deputy President noted that the ASM had informed her employer of her situation throughout the process and “held the genuine belief the employer would not make a determination on the matter until she was in a position to provide a final response to the allegations raised”.

Accepting that the ASM’s “culmination of personal circumstances” significantly impacted her capacity to address her dismissal he confirmed that the combination of factors were “extraordinary” and “demand” that the extension be granted.

Deputy President Lake identified he would proceed to hear the merits of the claim.

V. v Adairs Retail Group Pty Ltd 2020] FWC 5172 (25 September 2020)