A NSW pharmacy assistant who was let go by her employer in May has had her unfair dismissal application rejected by the Fair Work Commission (FWC).
The FWC ruled that Sarah Batterham had not met the requirements to file an unfair dismissal claim within 21 days of having her employment at The Chemist Cessnock terminated on 25 May.
Batterham told the FWC that she had been absent from work for close to six weeks prior to her dismissal because she was pregnant and "therefore a higher risk in connection with COVID-19".
She noted that pharmacy owner, Sam Ghobrial, had sent a text message on 25 May, noting he "had to hire a new girl" to cover her shifts, with Ghobrial adding "I'll let you know once I have a vacancy again".
Batterham responded saying "it doesn't seem fair that I haven't been the only one to have time off during an unsafe time in my pregnancy and have had a doctors note to cover such things, so I'll be seeking advice as to where I stand".
She obtained legal advice that she may want to wait to see if new opportunities to work at the pharmacy were offered, with the lawyer also noting she had 21 days from 25 May to make an unfair dismissal claim.
On 29 Jun another member of the pharmacy informed Batterham that Ghobrial was conducting interviews and trials for new staff.
Batterham subsequently learned that a new pharmacy assistant had been hired on 10 Jul, to fill "the same role" she had held, which prompted the delayed unfair dismissal application.
The FWC ruled there were no exceptional circumstances to make allowance for the delay in lodging the unfair dismissal claim.
The FWC noted that "the absence of an acceptable or reasonable explanation of the delay [in lodging the claim] weighs against a conclusion that there are exceptional circumstances".
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