Eniko Gavriel v Trimson Partner Real Estate

[2020] FWC 3636

[2020] FWC 3636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eniko Gavriel
v
Trimson Partner Real Estate
(U2020/8347)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 JULY 2020

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Ms Eniko Amy Gavriel for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] On 9 April 2020, Trimson Partner Real Estate (the Respondent) terminated Ms Gavriel’s employment with immediate effect. Ms Gavriel lodged her unfair dismissal application on 17 June 2020.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The termination having taken effect on 9 April 2020, the period of 21 days ended at midnight on 30 April 2020. The application was therefore filed 48 days outside the 21-day period.

[4] Ms Gavriel asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[9] Ms Gavriel included amongst her reasons for the delay the fact she did not have a computer, but I note she said she has a mobile phone, with which she was able to access the internet. Indeed, it was a search of the internet that drew Ms Gavriel’s attention to unfair dismissal rights and from this she discovered she had to make an application. Ms Gavriel also made contact with the Fair Work Ombudsman (FWO) on the day after she was dismissed. This contact evidently led her to registering a FWO account and receiving a customer registration number (CRN). Ms Gavriel says that having done so, she expected the FWO would contact her in order to lodge an unfair dismissal application. However, the email received from the FWO 4 does not suggest this. Instead, it suggests that upon registering, a worker (in this case Ms Gavriel) would be required to take steps to engage with the FWO in order to obtain its assistance in relation to various matters. There was no specific reference to unfair dismissal.

[10] I note Ms Gavriel submits that following her termination she was too unwell to focus, concentrate or follow up, until the date of her application was lodged. By way of background, Ms Gavriel says that on 31 March 2020 at 2:00pm she had a doctor’s appointment, from which provided the Respondent a medical certificate at 2:35 pm. She states that at 2:50pm, she then received the text message from Mr John Verduci of the Respondent, outlined below, stating that he was standing her down with no pay. This, Ms Gavriel submits, made her already fragile state of mind even worse, given her medical certificate was for stress relief due to her work. Ms Gavriel submitted a mental health treatment plan from her general practitioner dated Friday 3 April 2020 which outlined a diagnosis of Adjustment Disorder - Anxiety. Ms Gavriel states that she was diagnosed with severe stress, anxiety and depression, is now taking medication and is regularly checked by her general practitioner and psychologist. She submits that she has not been well enough to perform any duties, let alone to undertake the serious process of submitting an unfair dismissal application. She stated that she made her application once she started to improve.

[11] Ms Gavriel also cited her incapacity to leave home for two months because of government restrictions due to COVID-19, although I note she appears to have visited her former workplace on 14 April 2020 and another real estate agency in the period after her dismissal.

[12] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which ended at midnight on 30 April 2020. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 5

[13] I do not consider that Ms Gavriel’s explanations outlined above, individually or collectively provide an acceptable or reasonable explanation for the delay. The medical evidence before me outlines a pre-dismissal diagnosis of Adjustment Disorder – Anxiety, at which time Ms Gavriel’s Perception, Judgement, Insight and Orientation were assessed as normal. The only medical information provided that relates to the period following the dismissal was a referral from Ms Gavriel’s general practitioner to a psychologist dated 1 May 2020, which outlines that a GP consultation was conducted on that day for “anxiety from unfair dismissal” and the medication she was prescribed at that time. There is nothing in the medical evidence before me that goes close to corroborating Ms Gavriel’s assertion that she has been suicidal. So, while I accept Ms Gavriel has been ill, absent any medical evidence detailing the impact this illness had on her capacity to lodge an unfair dismissal application, I do not accept the explanation Ms Gavriel has given as preventing her from doing so on time. Stress and anxiety from a busy workplace are not unusual and nor are shock and a degree of trauma uncommon reactions to dismissal. I also note Ms Gavriel was able to carry out internet research and engage with the FWO very soon after her dismissal and while it may be accepted that she may have suffered from a lack of focus, it was her complete lack of follow-up that resulted in her unfair dismissal application being made 48 days late.

[14] I am therefore not persuaded that Ms Gavriel has provided an acceptable or reasonable explanation for the delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[15] Ms Gavriel was notified of the dismissal on the same day that it took effect and had the full period of 21 days to lodge her application. This is a neutral consideration.

Action taken to dispute the dismissal

[16] As outlined in [9] above, Ms Gavriel’s contact with the FWO on 10 April 2020 left her under the impression that the FWO would contact her for the purposes of lodging an unfair dismissal claim. As for Ms Gavriel’s contact with Mr Verduci after 9 April 2020, this was limited to an attendance and discussion at the Respondent’s office on 14 April 2020. At this time, Ms Gavriel submitted a certificate of capacity, returned some keys and had some discussion about the merits of workers’ compensation as opposed to JobKeeper payments but there does not seem to have been any discussion specifically directed at the termination of Ms Gavriel’s employment.

[17] If the contact with the FWO on 10 April 2020 could be said to constitute “action to dispute the dismissal”, I would attribute to it only the most minimal weight in the consideration of whether there are exceptional circumstances.

Prejudice to the employer

[18] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[19] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

[20] Ms Gavriel says she had experienced a build-up of work-related stress in the period leading up to the termination of her employment, during which time she felt overworked and unsupported. Her feelings of discomfort were exacerbated by COVID-19. She says when she consulted her doctor on 31 March 2020, she was put on stress leave. Ms Gavriel says she then took her medical certificate to her office and gave it to Mr Verduci and approximately 20 minutes later, received a text message from him, stating:

“Hi Amy, given the current Coronavirus situation and the lack of work, unfortunately I need to stand you down without pay. When things improve I would be happy for you to return and resume your position. Regards, John Verduci.” 6

[21] Ms Gavriel claims she was the only employee stood down and that Mr Verduci replaced her within two days. She alleges she was dismissed because she submitted a medical certificate. The email dated 9 April 2020 by which Mr Verduci terminated Ms Gavriel’s employment states:

“Hi Amy,

Unfortunately given the current Covid-19 pandemic and the workload involved in rent negotiations (which are both out of my control), and in accordance with your work agreement, I have to terminate your employment…Please note you must return the company car and office key by Tuesday 14thApril, 2019.” 7

[22] Ms Gavriel refutes any suggestion there was a lack of work. She claims there was “heaps of work” for her to do.

[23] Mr Verduci asserted a reason for the dismissal was that Ms Gavriel was clearly in no position to work. He asserts Ms Gavriel was not of a stable mind, had submitted certificates stating that she was unfit for work and had stated that she was too scared to attend due to COVID-19. Mr Verduci says the Respondent’s property portfolio required management of 200 properties and with rent reduction applications being made, the role needed to be filled so as to avoid losing clients. The Respondent submits that the dismissal was not unfair because the Applicant could not give a timeframe for her return and further, it alleges Ms Gavriel had become abrupt with clients, prone to swearing and aggressive in demeanour.

[24] The weight to be given to this merits consideration is dependent on the extent to which there is merit in the substantive application. 8 While the Respondent purported to terminate Ms Gavriel’s employment due to a lack of work, the termination occurred while she was under a medical certificate and the Respondent has subsequently asserted it needed someone to manage its property portfolio. I am therefore satisfied that Ms Gavriel’s unfair dismissal application is of more than sufficient merit so as to weigh in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position

[25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. The matters they raised were instead directed at the merits of their respective cases. I therefore consider this to be a neutral consideration in the present matter.

Conclusion

[26] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[27] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Ms Gavriel, I am not satisfied that there are exceptional circumstances.

[28] I have not been persuaded there is an acceptable or reasonable excuse for the 48-day delay and while I accept the merits of Ms Gavriel’s case weigh in favour of a finding of exceptional circumstances, I consider the other matters I am required to take into account as either neutral or weighing only marginally in favour of a finding of exceptional circumstances. Having had regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Ms Gavriel, I have concluded there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[29] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) and accordingly, Ms Gavriel’s application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms EA Gavriel the herself.

Mr J Verduci for the Trimson Partner Real Estate.

Hearing details:

2020.

Melbourne (by telephone):

July 9.

Printed by authority of the Commonwealth Government Printer

<PR720901>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Exhibit A7.

 5   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 6   Exhibit A5.

 7   Exhibit A4.

 8   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].