Despina Theodoridis v Antocarm Pty Ltd T/A Sesto Shoex

[2021] FWC 1771

[2021] FWC 1771

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Despina Theodoridis
v
Antocarm Pty Ltd T/A Sesto Shoex
(U2021/1575)

COMMISSIONER MCKINNON MELBOURNE, 31 MARCH 2021

Application for an unfair dismissal remedy – effective date of dismissal – extension of time refused.

[1] Despina Theodoridis was employed on a casual basis by Antocarm Pty Ltd trading as Sesto Shoex in Werribee Plaza. She commenced employment on 7 December 2017 and in recent times, worked approximately five hours per week. Her employment came to an end in either late January or early February 2021 in circumstances that are in dispute. At the time of dismissal, Ms Theodoridis was also in the process of establishing her own business, “What Dee Thinks”, an online platform for young millennials on finding identity through fashion.

[2] On 25 February 2021, Ms Theodoridis applied for an unfair dismissal remedy. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal “took effect”, or if there are exceptional circumstances, a further period allowed by the Commission. 1

[3] There is no dispute that Ms Theodoridis was dismissed. The question is when the dismissal took effect and, if the application is late, whether an extension of time should be granted.

Effective date of dismissal

[4] A dismissal takes effect from the date that termination of employment is clearly communicated to the employee. 2 Whether, and when, that occurs is a question of fact, to be considered objectively by asking: what would a reasonable person in the position of the parties have understood by the words and conduct of the other?3

[5] In this case, the parties submit that Ms Theodoridis was dismissed on either 29 January 2021 (her last shift worked), 30 January 2021 (when she was told of her dismissal), 4 February 2021 (her last day of jobkeeper payments) or 13 February 2021 (when she received a letter of termination). It is only the first two dates that give rise to the need for an extension of time. If dismissal occurred on either 4 or 13 February 2021, the application was made in time.

A brief history

[6] On 29 January 2021, Ms Theodoridis worked what would be her last shift as a casual employee of Sesto Shoex.

[7] On 30 January 2021, Ms Theodoridis sent a text message to the owner of Sesto Shoex, Mark Sesto, to advise that she would not be in due to a sore throat and headache, and so that she could rest ahead of day surgery scheduled for 2 February 2021.

[8] Mr Sesto then rang Ms Theodoridis and they had a conversation in words to this effect:

Mr Sesto:	“I didn’t want to do this over the phone, but I can’t string it along any further.”
Ms Theodoridis:	“What are you talking about?”
Mr Sesto:	“I need to let you go. You need to spend more time on your business, you can’t give me 100% on mine and you aren’t giving 100% to yours. It’s best that you concentrate on your business as I believe it will be a success.”
Ms Theodoridis:	“I need my job, it’s my only source of income. You know my business is not profitable yet, I am not generating any income from it and as an online blog, it does not affect my capacity to work and be a valuable member of your team. What if I work a few days a week?”
Mr Sesto:	“No, I can’t do it anymore. You should spend more time on your business. I think once you digest what I am telling you, what I am saying will make more sense - it will be more beneficial to your business and to mine than trying to split your time between the two.”

[9] On 2 February 2021, Ms Theodoridis underwent the planned surgical procedure and spent the next five or six days convalescing in bed.

[10] On 5 February 2021, Ms Theodoridis received her final payment under the jobkeeper scheme for a fortnight covering the period from 22 January 2021 to 4 February 2021.

[11] On or about 8 February 2021, Ms Theodoridis contacted her accountant to discuss her options and what she should do next from a financial perspective. They briefly discussed the option of unfair dismissal, but their focus was on obtaining Centrelink benefits. Ms Theodoridis was advised to obtain a termination letter and an employment separation certificate from Sesto Shoex.

[12] On 12 February 2021, Ms Theodoridis sent a text message to Mr Sesto asking for the documents suggested by her accountant. On the same day, the Victorian Government announced a five day ‘circuit breaker’ lockdown. One consequence was that Mr Sesto had “a lot going on” – arranging for the shutdown of Sesto Shoex as well as an ice cream business he is involved in – when he received the request from Ms Theodoridis.

[13] On 13 February 2021, Mr Sesto sent Ms Theodoridis a termination letter stating that her employment had ended on 4 February 2021. In response, Ms Theodoridis sent a text message to Mr Sesto:

“Hey Mark, thanks for sending through the termination letter. My employment ceased on the 29th of January which was the last day of work. You have dated it the 4th which I didn’t work during that time and didn’t get paid for. Can you please fix this and also send through the employment separation certificate when you get a chance. Desi”

Consideration

[14] It is clear from the message of 13 February 2021 that Ms Theodoridis understood her employment had come to an end. I do not accept that on 12 February 2021 she “still didn’t know” if she had a job or not or that the dismissal was only confirmed when Ms Theodoridis received the termination letter. Were that the case, one would expect the message to acknowledge confirmation of the dismissal itself rather than simply taking issue with the purported date.

[15] In her Form F2 application to the Commission, Ms Theodoridis asserts that she was “fired … over the phone” on the day she messaged in sick due to laryngitis. This version of events is consistent both with the message set out above and the content of the discussion between Ms Theodoridis and her accountant on or about 8 February 2021 about applying for jobseeker and the possibility of an unfair dismissal claim. Both inquiries are relevant to a person who has lost their job. It does not make sense that Ms Theodoridis sought advice about these issues at a time she thought she was still employed.

[16] The only communication that could have led Ms Theodoridis to believe that her employment had come to an end was the telephone call between Mr Sesto and Ms Theodoridis on 30 January 2021. That she had been dismissed in the course of the call is what any reasonable person would have understood from the conversation.

[17] Indeed, Ms Theodoridis says she knew from the conversation on 30 January 2021 that her employment had come to an end. There is a dispute about whether the conversation ended with a promise to talk again in two weeks’ time, which is significant in the sense that Ms Theodoridis says this was why she thought she had not yet been dismissed. I am not satisfied that Mr Sesto did promise to call her again in two weeks or that his words in the conversation on 30 January 2021 implied that Ms Theodoridis was still employed.

[18] The date of dismissal was not altered by a subsequent payment by Sesto Shoex to Ms Theodoridis on 5 February 2021. The payment was purportedly made under the jobkeeper scheme. Generally speaking, an employee who is eligible and enrolled in the scheme is entitled to jobkeeper payments for a fortnight if they are employed “at any time in the fortnight”. 4 Ms Theodoridis was dismissed in the middle of a pay period, and her final pay reflected the her having been employed for at least some time in the relevant period.

[19] In this case, the date of dismissal was also not affected by the date the letter of termination was received by Ms Theodoridis. This is because the letter was only sent at Ms Theodoridis’ request, to assist with her application to Centrelink. It was not the means of communicating the dismissal. The dismissal had already been communicated to Ms Theodoridis orally, over the telephone, on 30 January 2021. There is no rule that termination of employment can only be given effect in writing.

[20] I find that Ms Theodoridis clearly understood her employment had come to an end during the telephone conversation with Mr Sesto on 30 January 2021. She was dismissed on that day. As a result, her application for an unfair dismissal remedy is 5 days late.

Extension of time

[21] Section 394(3) of the Act sets out the factors to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:

•  the reason for the delay;

•  whether the person first became aware of the dismissal after it had taken effect;

•  any action taken by the person to dispute the dismissal;

•  prejudice to the employer (including prejudice caused by the delay);

•  the merits of the application; and

•  fairness as between the person and other persons in a similar position.

[22] An extension of time can only be granted if there are exceptional circumstances – those that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.  5

[23] Reason for delay: Ms Theodoridis says that on the day she was dismissed, she was suffering from laryngitis. The following week, she was admitted to hospital for a surgical procedure. She was in bed for 5 or 6 days while recovering and unable to function normally. After that time, Ms Theodoridis was focused on securing an alternative source of income. She resumed work on her online platform while collating the documents she needed for Centrelink. She lodged her application for Centrelink benefits approximately one week after 2 February 2021.

[24] On or about 8 February 2021, Ms Theodoridis contacted her accountant to discuss her options. They briefly discussed the possibility of an unfair dismissal claim. At the time, Ms Theodoridis did not know about the 21-day timeframe. Had she known about it, Ms Theodoridis would have made her claim in a timely manner – a submission that suggests the main reason Ms Theodoridis did not make her application in time was ignorance of the law. As February progressed, and after speaking to others, she began researching the option of an unfair dismissal claim including by reading up on specific cases.

[25] Ms Theodoridis’ day surgery shortly after her dismissal and the post-surgery recovery time of approximately one week helps to explain at least part of the delay. However, for much of the period the reason for delay is that Ms Theodoridis was focused on other things and did not know that the clock was ticking. On balance, Ms Theodoridis’s explanation for the delay does not weigh in favour of a grant of additional time to make the application.

[26] Whether the person first became aware of the dismissal after it had taken effect: This is not a relevant consideration. Ms Theodoridis knew she had been dismissed in the telephone conversation on 30 January 2021 with Mr Sesto.

[27] Any action taken by the person to dispute the dismissal: Despite being alerted to the possibility of an unfair dismissal claim in discussion with her accountant on or about 8 February 2021, Ms Theodoridis did not take active steps to dispute her dismissal until her application was filed in the Commission. This weighs against the grant of additional time.

[28] Prejudice to the employer (including prejudice caused by the delay): There is no evident prejudice to Sesto Shoex if the application proceeds. It is a neutral consideration.

[29] Merits of the application: Ms Theodoridis submits that the dismissal was unfair because she could have been given more notice, the reasons given were not true, and the dismissal process was not fair. Sesto Shoex, a small business, says it was dealing with the COVID-19 pandemic and that keeping Ms Theodoridis employed as a casual employee on jobkeeper was affecting the business. It says Ms Theodoridis was unable to devote sufficient energy to the business as she had a business of her own and that working in both businesses was not helping either of them. At this early stage of the proceedings, there is not enough information to fairly assess the merits on the face of the record. They are a neutral consideration.

[30] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant consideration.

Conclusion

[31] I accept that the period after dismissal was not easy for Ms Theodoridis, and that for at least part of that period, Ms Theodoridis was recovering from surgery. However, for much of the 21-day timeframe, Ms Theodoridis was able to continue building her online business, research Centrelink benefits and apply for them, seek advice from her accountant and interact with Mr Sesto by text message. It must be the case that she also could have researched the option of an unfair dismissal claim and made her application in a timely way. At the very least, she could have expressed her dissatisfaction with what had occurred with Mr Sesto following the dismissal. Reasonable steps of this kind were not taken until after the 21-day period had expired.

[32] The 21-day timeframe exists in recognition of the need to balance the rights of both employees and employers when an employment relationship comes to an end. On balance, I am not satisfied that there are exceptional circumstances such that it would be appropriate to exercise my discretion to extend the time for Ms Theodoridis to apply for a remedy from unfair dismissal.

[33] The application is dismissed.

COMMISSIONER

Appearances:

D Theodoridis on her own behalf.
M Sesto for the Respondent.

Hearing details:

2021.
Melbourne (by telephone):
March 30.

Printed by authority of the Commonwealth Government Printer

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 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Ayub v New South Wales Trains[2016] FWCFB 5500 at [21]; Stevanovski v Linfox Transport [2001] AIRC 388; PR903594.

 3   Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43].

 4   Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth), s.9.

 5   Nulty v Blue Star Group (2011) 203 IR 1 at [13].