Chrysovergi v Hellenic Museum - [2012] FMCA 248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHRYSOVERGI v HELLENIC MUSEUM

[2012] FMCA 248

INDUSTRIAL LAW – Alleged dismissal for prohibited reason – applicant asserting dismissal because she had lodged a WorkCover claim – respondent asserting dismissal for poor performance – misconduct – case turning wholly on its facts – application dismissed.

Fair Work Act 2009

Stephens v Australian Postal Corporation [2011] FMCA 448

Applicant:

STYLIANI CHRYSOVERGI

Respondent:

HELLENIC MUSEUM

File Number:

MLG 848 of 2011

Judgment of:

Burchardt FM

Hearing dates:

20 & 21 February 2012

Date of Last Submission:

21 February 2012

Delivered at:

Melbourne

Delivered on:

4 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr. B. Shaw

Solicitors for the Applicant:

Z N Zigouras & Co. Lawyers

Counsel for the Respondent:

Ms R. Sweet

Solicitors for the Respondent:

Blue Rock Law

ORDERS

The application be dismissed.
The Applicant pay the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 848 of 2011

STYLIANI CHRYSOVERGI

Applicant

And

HELLENIC MUSEUM

Respondent

REASONS FOR JUDGMENT

In this application, Ms Chrysovergi seeks compensation in the sum of $200,000 (as itemised in the application) together with “penalties for the Court to decide”.
The application alleges dismissal in contravention of a general protection, and the general protection is the applicant’s dismissal on

14 April 2011, “two days after notifying my employer of an application to WorkCover on the 12 April 2011.”
The application expressly relies upon ss.340, 341, 342, 343, 352 of the Fair Work Act 2009 (“FW Act”).
Since ss.340, 343 and 352 are all civil penalties provisions, I infer in the applicant’s favour that she seeks both the damages she has claimed and the imposition of civil penalties for contravention of those provisions.
The respondent concedes that the notification by the applicant of a WorkCover claim is capable, at least in principle, of establishing a workplace right (see Stephens v Australian Postal Corporation [2011] FMCA 448 per Smith FM at [19]).
The respondent says, however, that there was no contravention in the dismissal because it arose not because of the notification of a WorkCover claim, nor because of a temporary absence through illness or injury, but rather it was effected because of inadequate work performance and misconduct on Ms Chrysovergi’s part.
The respondent accepts that subject to some preliminary matters not put in issue, the respondent faces the onus of proving that its actions were not for a prohibited reason, but says it has satisfied this test.
Although there is no shortage of authority about these sorts of matters, because of the nature of the facts of the case it will not be necessary for the Court to refer very extensively, if at all, to those authorities. This case turns squarely on its facts.
Although the facts in the case are to an extent in dispute, much of what occurred is all too easy to work out because of the dynamic between the parties. The relevant factual history is as follows.
The Hellenic Museum was established in 2008 by Spiros Stamoulis. It appears to be an incorporated body and no issue turns upon its legal status. It is a not-for-profit organisation which aims to educate the public and be a centre for Hellenic history, culture and the arts in Melbourne. It is named after Nafsika Stamoulis, the late sister of Harry Stamoulis who is the present Chairman of the Board and a son of Spiros Stamoulis. Other members of the board include Mr Stamoulis’ mother and various other persons. There is a media sub-committee of the Board of which Harry Stamoulis and a Mr Ross Alatsas are members.
Vicki Yianoulatos has been employed as the Chief Executive Officer of the Museum since its inception in 2008 and reports to the Board and attends all Board meetings. Apart from Ms Yianoulatos, the only permanent employee apart from the applicant is Mr Arthur Vassiliou, a security guard, (see paragraph 5 – affidavit of Ms Yianoulatos).
In August 2010, according to Ms Yianoulatos (nothing turns on a particular date), the applicant first came to the Museum to interview Ms Yianoulatos as part of research for her University Studies.

Ms Chrysovergi at some point completed a Postgraduate Degree in Museum Studies at Deakin University having first come to Australia in 2002 and having also completed a language course at RMIT.
It is plain that Ms Chrysovergi has extensive and highly qualified experience as a Museum Curator, having obtained a degree in Conservation of Antiquities and Works of Art in Greece by 1986. She had subsequently worked for the Greek Ministry of Culture in the area of conservation for approximately 10 years at various institutions.
In late 2010, the applicant commenced to work with the respondent as a volunteer and on or about 10 January 2011, she commenced formal employment with the respondent as Curator of the Museum. Her employment contract is in evidence before the Court.
The following points should be noted about the contract, which is dated 30 December 2010 but signed by the applicant on 10 January 2011:
a)There was a probationary period of six (6) months.
b)The employment commenced from 10 January 2011 on a part time basis, albeit that the hours were more akin to full-time being Monday to Friday, 10:00am till 4:00pm.
c)The salary was $40,000 gross per annum.
d)The duties of the job were “Assisting the CEO in providing the Museum with high calibre exhibitions. Providing background material, historical research and all things necessary in the completion of proposed program of exhibitions as discussed with the CEO. Assisting the CEO with visitors/tours of the Museum together with basic administration and telephone duties for the Museum, as required.”
Things did not go altogether smoothly between Ms Yianoulatos and the applicant following the commencement of employment. In one sense, this was scarcely surprising. Although Ms Yianoulatos impressed me as being a reasonably well-educated woman, she plainly lacked the professional experience and expertise that Ms Chrysovergi clearly thought, and reasonably so, that she had. There were some teething troubles of a minor nature as to the provision of appropriate desks, accommodation and the like.
Both the applicant (paragraph 9 of her first affidavit) and

Ms Yianoulatos (paragraph 13 of her affidavit), did not get on.

Ms Yianoulatos says that she went out of her way to introduce the applicant as the new Curator to everyone who visited the Museum, and she points to exhibit VAY2 to her affidavit which is an article published in the OPA Magazine which she arranged. That article lands the applicant fairly and squarely and I accept that Ms Yianoulatos caused it to be published.
Nonetheless, things did not go well between these two people, who in an organisation in which they were the only two executive employees, were necessarily thrown much into contact. Ms Yianoulatos was in Greece on business from 14 January 2011 until 3 February 2011 and as soon as she returned things started to go wrong. It is not necessary to trawl through the slightly over intense disputation that took place. It is clear that things were going wrong from a very early point.
Notwithstanding this, on 10 February 2011, the applicant was invited to attend a Board meeting of the Museum. This was clearly to introduce her to the Board. The applicant says (paragraph 11 of her first affidavit) that at this meeting, she was informed that her work was progressing well and that “I was asked to organise more exhibitions for the Museum and to liaise with Museum authorities in Greece.” She appends as SC-2 to her affidavit, copies of emails sent to Greece. It appears that that email chain sent to Greece on 21 February 2011 was sent to an official of the National Bank of Greece to attempt to secure its art exhibition for an exhibition in Melbourne. This created problems.
The problems arose because the respondent has a very close collaboration with an organisation called the Hellenic Foundation. It is clearly regarded as imperative by the Board (including particularly

Mr Stamoulis) and by Ms Yianoulatos to maintain, as it were, the Hellenic Museum in the loop as to any approaches to be made to any organisation in Greece. This is because the Hellenic Foundation is the Museum’s primary source of contact in Greece when trying to secure an exhibition, and to ensure that the respondent comes into no conflict with that foundation. Indeed, it appears that Ms Yianoulatos is also engaged by the Hellenic Foundation to assist in the promotion of Hellenic culture in Australia (see paragraph 19 of Ms Yianoulatos’ affidavit).
According to Ms Yianoulatos (who was not challenged on this in cross-examination) an officer of the Hellenic Foundation contacted her on

2 March 2011 and it became clear that the Hellenic Foundation’s nose had been put out of joint.
On 3 March 2011, Ms Yianoulatos spoke to the applicant about this and told her she was not entitled to enter into these negotiations on her own. The applicant replied effectively that she was authorised by

Mr Stamoulis to do so.
I am unable to make any absolute conclusions as to this aspect of the controversy. It is clear from the job description and from the dynamics inherent in the situation, and indeed admitted by the applicant, that she was required to get Board approval for any initiative. It is also clear that Ms Yianoulatos thought that any sort of contact with Greece should only take place with her approval. Equally, it is clear that the applicant thought that it was appropriate for her to make her own direct contacts.
Wherever the truth of the matter lies, (and Mr Stamoulis has denied giving authority to the applicant in the terms suggested albeit that the job description suggests that in part it was the applicant’s job to arrange exhibitions), the fact is that what the applicant did caused a difficulty with the Hellenic Foundation which disturbed Ms Yianoulatos and the respondent’s officers generally.
As a result of the contretemps, Ms Yianoulatos, on any view, spoke to Mr Stamoulis about the difficulty she was having with the applicant and I accept, as she says, that he told her to put her foot down; that the applicant reported to her and that she needed to understand this. I accept that Mr Stamoulis told Ms Yianoulatos that he needed to put in place a process to ensure that the Museum’s relationship with the Hellenic Foundation was not damaged.
Ms Yianoulatos took leave from 7 March to 10 March 2011 and on

11 March 2011, was informed by either Mr Stamoulis or his mother that the applicant had attempted to meet with Mr Stamoulis while she was away to discuss the 3 March incident, but that they had refused to do so.
Mr Stamoulis clearly told Ms Yianoulatos that the applicant should be dismissed, but Ms Yianoulatos said that with a new exhibition called “the Sounds of the Muse” opening in three weeks, she needed to retain the applicant’s employment for longer. Mr Stamoulis says that he agreed to wait until the launch was over and then terminate the employment during her probationary period.
On 24 March 2011, a Board meeting was held. The minutes of that meeting, exhibit VAY-4, clearly record:
Curator:
·The CEO reported on issues in relation to the Curator’s performance – specifically relating to issues raised by the Hellenic Foundation for Culture (Greece), issues relating to budgetary restraints, as well as inappropriate conduct toward the CEO and other members of staff. The Board found this behaviour unacceptable and requested the CEO terminate her employment following the launch of the latest exhibition, Sounds of Muse.
It is not necessary to traverse the controversy between the parties as to exactly who prepared the Sounds of the Muse exhibition but one thing that is agreed is that a Mr Kotsanas, who is the Curator and Director of the Greek Musical Instruments Museum in Greece (and who had travelled to Melbourne with the instruments for the exhibition to arrange for its presentation with the respondent) played a part in physically establishing the exhibits.
Although Ms Yianoulatos refers to a number of other alleged derelictions of duty on the applicant’s part (see paragraph 27 of her affidavit) these, in my view, are not material to the March events.
A catalogue for the Sounds of the Muse exhibition was prepared in which a message was included from the applicant as Curator (exhibit VAY-5). The publication, Ta Nea, published an article promoting the Sounds of the Muse exhibition on 6 April 2011. That article referred to Mr Kotsanas as being the person who brought the exhibits to Melbourne, but did not refer to the applicant.
The applicant’s response to reading this article is best taken from her affidavit:
“Following this, I read an article in a Greek newspaper, called ‘Ta Nea’, which contained an article in relation to one of the museum’s exhibitions. Many of the comments in the article were derived from my own research and work. However, I was not acknowledged in the article and I felt that I would not be given any credit for the use of my work in the article. The article described Mr Kotsanas as the curator of the exhibition, when in fact I was the curator of the exhibition and the exhibition which I had organised for the museum. Mr Kotsanas was the creator and director of the Greek Musical Instruments Museum in Greece and was a contact of mine in the museum industry. This was very stressful for me.”
It should be noted that although both Ms Chrysovergi and

Ms Yianoulatos say that the article described Mr Kotsanas as the Curator of the Museum, that is not in fact translated in the exhibit VAY-6. I note, however, that there is a photograph of Mr Kotsanas in the Greek version of the materials in which they refer to him as the Curator of the respondent.
The applicant then had a conversation, according to her, with

Mr Alatsas. She says that she raised her concerns about the newspaper article, and that he informed her that he based the article on instructions by Ms Yianoulatos. Mr Alatsas is an operative of Ta Nea.
Mr Alatsas says that the applicant was extremely rude to him and embarrassed him mightily in front of an important client. The applicant, although she admitted in cross-examination that she was talking very fast and was very upset, suggested that her conduct had been unremarkable and that nothing untoward had occurred.
It appears that thereafter the applicant had a conversation with

Ms Yianoulatos, who had already been spoken to by Mr Alatsas about his conversation, and upbraided her for what had occurred.
Following this conversation, Ms Yianoulatos spoke with Mr Stamoulis and he said Ms Chrysovergi should be terminated the next day when she arrived for work.
That evening, as the evidence emerged during the trial, Ms Yianoulatos drafted a letter of termination for the following day, 7 April 2011, which Mr Stamoulis signed, and a cheque in respect of her pay was made out.
Mr Yianoulatos and Mr Stamoulis were apparently concerned that

Ms Chrysovergi would cause a scene when her employment was ended so at 9:29 am, Ms Yianoulatos sent her a text message asking her to meet when she came at 10 o’clock. The applicant replied by text in Greek, “I’m not feeling well and won’t be in today.” Ms Yianoulatos then spoke to Mr Stamoulis. Mr Stamoulis was due to be away on

8 and 11 April 2011 and he suggested that the letter of termination should be sent by courier. Although Ms Chrysovergi does not accept that this occurred, I have no doubt that a courier endeavoured to deliver a cheque and letter to her but failed to do so because she was attending her doctor.
It should be noted that exhibit VAY-8, being courier records, shows that the courier picked up the package at 11:17 am and sought to deliver at about 1:00 pm, returning again having failed to do so at 2:43 pm.
Because of the failure to deliver through the courier, and following the conversation with Mr Stamoulis, Ms Yianoulatos sent a message to the applicant telling her to take time off until Tuesday (when Mr Stamoulis would be back and would give her the termination letter in person that day).
At 3:46 pm on what was obviously a crowded day at the Museum, the applicant sent a text message to Ms Yianoulatos advising that she had been put on WorkCover until the end of the following week, when she would come in to give the paperwork for the insurance.
On Tuesday, 12 April 2011, Mr Stamoulis signed a further letter informing Ms Chrysovergi about the termination of employment that was sent by registered mail although it appears that, through an oversight, the cheque for her termination entitlements was not sent.
On the same day at about 3:30 pm, Ms Foudoulis, who shares accommodation with the applicant and is clearly a close friend, arrived at the Museum with WorkCover documents. She tape-recorded the interchange that took place and I have heard it played in open Court. It shows Ms Foudoulis seeking to get the respondent’s officers,

Mr Vassiliou and Ms Yianoulatos, to sign a receipt. They tried to avoid signing for receipt of the document although they did express a willingness to provide a letter saying it had been received, and Ms Foudoulis was trying with very considerable pertinacity to make them sign it. I found Ms Foudoulis to be fairly assertive although not rude, and I find that Mr Vassiliou and Ms Yianoulatos were very cautious.
From the fact that the meeting was tape-recorded by Ms Foudoulis and from the nature of the response she received from the respondent’s officers, it is clear that by this stage, all parties were boxing clever.

Ms Foudoulis has asserted in her affidavit that Mr Vassiliou left for a while and has further asserted that it was during this period that the termination letter was delivered to Australia Post. This assertion is consistent with the applicant’s case that she was in fact terminated at that point because of the receipt of the WorkCover documentation.
It is a fact that the pay that Ms Chrysovergi should have received with the letter of 12 April 2011 was not in fact posted until May.
At this point, it is appropriate to say something about the credit of the witnesses. Ms Foudoulis was clearly very engaged with the applicant’s case. At one point, a third party came into the room and Ms Foudoulis actually went so far as to sit immediately behind her, look ostentatiously over her shoulder and try to read what it was that this person was writing. I had to direct her to sit apart.
The applicant, who it is quite clear has been rendered extremely ill by the sequence of events, gave her evidence straightforwardly while appearing somewhat listless and distressed. She has not sought work since her termination and has not been able to do so. Her treating psychologist confirmed that this was so.
It is perhaps appropriate in view of the matters I have set out to say a little bit about the three witnesses called by the respondent.
Harry Stamoulis is plainly the moving figure in the Museum. His family contributes some $300,000 of the approximately $360,000 budget. It is clear that he does this to honour the memory of his father who founded the Museum and his sister who died, no doubt, before her time. That he should provide on an annual recurrent basis sums of this order for no monetary gain (the Museum is open to the public for free) speaks very highly of his commitment in this philanthropic effort.

Mr Stamoulis impressed me as a man of considerable force of personality and it is clear he is a very successful businessman. He was precise and clear in his answers and not moved one jot in cross-examination. He was well aware that the applicant had no unfair dismissal rights because of her probationary period and was plainly determined to dismiss her before that expired.

In circumstances where he had a longish serving employee with whom I would infer he was perfectly satisfied, and that employee was having major difficulties with what in effect was the only other employee in the organisation, it is scarcely surprising that he decided at an early stage to rid himself of the problem. Mr Stamoulis’ evidence was consistent with the documentation and he roundly rejected any suggestion, put to him on instructions by counsel for the respondent, that the cheque dated 7 April 2011 was a forgery post-dated after the event. He likewise rejected any assertion that the minutes of the Board meetings of February or March 2011 had in any way been tampered with.
Ms Yianoulatos also impressed me very favourably as a witness. While she frankly conceded that the events in April were something of a blur because she was undergoing very distressing family law proceedings at the time, her demeanour and general responsiveness are such that I believe her. It needs to be borne in mind that it is put that she and the respondent’s officers generally have been the subject of a widespread endeavour to conspire fraudulently to defeat the applicant’s claim, in particular by creating fraudulent records showing the decision to dismiss in March and a cheque dated 7 April 2011. I thought

Ms Yianoulatos was an excellent witness despite some difficulties and once again, she was plainly telling the truth.
The final witness called by the respondent was Mr Alatsas. His evidence was given with complete conviction. His evidence that the applicant shouted at him on 6 April 2011 and embarrassed him was all too obviously correct. The applicant was obviously distraught by what she perceived as the dishonesty of the article in Ta Nea, and she was certainly saying so both to him and to Ms Yianoulatos. The applicant’s response seems to me to be wildly over the top but at the end of the day, that merely suggests to me that she is somewhat highly strung. I make this observation because I do not think that she is the sort of person who would have been able to control her emotions in the stressful situation in which she found herself in April 2011.
Although it is implicit in the findings I have already set out before making the specific credit findings, I find that the respondent’s witnesses were all witnesses of truth, whose account of events is not only clearly correct but clearly corroborated by contemporaneous documentation, not the subject of later fabrication.
It is, I regret to say from the applicant’s point of view, all too obvious that she was dismissed because she did not get on with the primary employee to whom she reported, because she was perceived to have inappropriately put at risk the respondent’s very important relationship with the Hellenic Foundation and because she misconducted herself in her dealings both with Mr Alatsas and Ms Yianoulatos on 6 April 2011.
The position was complicated by the failure of the courier to serve

Ms Chrysovergi on 7 April 2011, and further complicated by

Mr Stamoulis’ absence and the fact that the applicant then went on to WorkCover leave (although her WorkCover claim was subsequently denied).
It is clear beyond any doubt whatever that the applicant was not dismissed because she was temporarily absent on leave as a result of a sickness, or because she either had or indicated that she proposed to lodge a WorkCover claim and exercise her workplace right.
It therefore follows that the applicant’s claim must be dismissed. There is no need to consider the issue of the imposition and quantification of penalties.
I should say finally, lest this matter proceed by way of appeal, that the applicant did not in the course of her evidence or submissions in any way provide a foundation for the Court to assess the claimed losses of $200,000. In the application, these are described without itemisation as “overall economic future loss”, “pain and suffering” and “interest”.
While the evidence of the applicant’s treating psychologist,

Mr Efremidis, certainly shows that she is unwell and likely to remain so for a long time, the findings I have made do not suggest that that illness is properly attributable, at least wholly, to the conduct of the respondent. The extent to which the preparation of the article in Ta Nea caused the applicant to become unwell is not clear at all, and there is certainly no evidence sufficient to ground a finding as to the extent to which any omissions by the respondent to acknowledge the applicant’s work were such as to give rise to this illness. The issues of causation, negligence and responsibility remain wholly at large.
Furthermore, the evidence of the applicant is that she has not sought any work since she was terminated. Her salary was relatively low in what must be a very highly specialised field. There would be no basis upon which to evaluate the claimed future economic loss as the matter stands.
These remarks are all by the by because I have rejected the claim but it should be noted that even if the applicant had been successful, the question of quantifying her loss would have been one which at the very least would have required further consideration.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 4 April 2012