Helen Baltas v ISS Facility Services Limited Australia T/A ISS Facility Services

[2017] FWC 3045

[2017] FWC 3045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helen Baltas
v
ISS Facility Services Limited Australia T/A ISS Facility Services
(U2017/2860)

COMMISSIONER BISSETT MELBOURNE, 5 JUNE 2017

Application for an unfair dismissal remedy – extension of time.

[1] Mrs Helen Baltas was dismissed from employment with ISS Facility Services Limited Australia T/A ISS Facility Services (ISS) on 20 February 2017. Mrs Baltas has made an application seeking relief from unfair dismissal. Her application was made to the Fair Work Commission (Commission) on 15 March 2017.

[2] Mrs Baltas is 67 years old, speaks (heavily accented) and understands English although her first language is Greek, and worked as a cleaner for ISS for five years. She was a supervisor at the time she was dismissed.

[3] Section 394(2) of the Fair Work Act 2009 (FW Act) requires that an application for unfair dismissal be made within 21 days of the time the dismissal took effect. Mrs Baltas made her application 23 days after her dismissal took effect. Her application was therefore made two days out of time. For Mrs Baltas’ application for unfair dismissal to proceed she must be granted an extension of time within which to make the application.

[4] This decision deals with that matter.

[5] The Commission has the power, pursuant to s.394(3) of the FW Act, to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

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

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

(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and

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

[6] I have considered each of these matters below.

Reason for the delay

[7] Mrs Baltas agrees that her employment was terminated on 20 February 2017 at a meeting she attended with management.

[8] Mrs Baltas had a medical certificate stating she was suffering from “anxiety/stress” on 9 and 10 February 2017.

[9] She had a further medical certificate stating she was suffering from “anxiety/stress” for the period 13-17 February 2017.

[10] She had a further medical certificate for the period 20-24 February 2017.

[11] On 20 February 2017 Mrs Baltas attended a meeting with ISS. Following her response to allegations of misconduct and a consideration by ISS, Mrs Baltas was advised that her employment was terminated. The termination of employment was confirmed in a letter sent to Mrs Baltas dated 21 February 2017.

[12] On 21 February 2017 Mrs Baltas attended the emergency department at the Royal Melbourne Hospital complaining of “palpitation and … chest heaviness”. The certificate from the Royal Melbourne Hospital says that she was not fit for work from 21 February until 24 February 2017 inclusive.

[13] Mrs Baltas was distressed by her dismissal – she says she couldn’t sleep, that she had worked very hard and did her very best for ISS.

[14] Mrs Baltas said that she received the letter of 21 February 2017 a few days later and she received her final pay slip about a week later. She thought the pay slip might have been a trick because it did not say “termination pay”.

[15] After the meeting of 20 February 2017 and receipt of the letter Mrs Baltas says that she looked for “Fair Work”. It is not clear however when she first attempted to contact the Fair Work Commission.

[16] Mrs Baltas says she came to “Fair Work” on 13 March 2017, the following day someone rang her and she came in the next day (15 March 2017). She brought her friend (Ms Vlachopoulos) to assist. When she attended the Commission on 15 March 2017 she saw a solicitor (presumably in the legal advice clinic pilot programme) and her application for unfair dismissal was filed that day.

[17] Mrs Baltas says that she knew she should contact “Fair Work” at the time she was dismissed but did not know the timeframe within which she should make the application. Mrs Baltas says she tried to call many times but they said “do this, do this” and she did not know how to do those things.
[18] Mrs Baltas says she does not know how to use a computer.

When person first became aware of dismissal

[19] Mrs Baltas became aware of her dismissal on 20 February 2017 when she was advised of this in a meeting with management from ISS. Whilst she suggests that she was tricked because her final pay slip did not specify that it was a termination pay, I am satisfied that she was aware of her dismissal on 20 February 2017 when she was advised of it.

Action taken to dispute the dismissal

[20] The only action taken by Mrs Baltas to dispute her dismissal is her application to the Commission.

Prejudice to the employer

[21] ISS does not argue that it would be prejudiced if the extension of time was granted.

Merits

[22] ISS says that Mrs Baltas’ employment was terminated for her involvement “in an arrangement whereby hours worked by her and her son were paid to her husband to avoid tax and overtime.”

[23] Mrs Baltas says that she does not input any information about hours of work into the pay system, that her supervisor Michael Girgis does this and that she would tell Mr Girgis, from the sign in book, who worked and the hours they worked.

[24] Mrs Baltas also said that Mr Girgis made her pay amounts of money to him.

Fairness

[25] No submissions were made on fairness.

Approach of the Commission

[26] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined above.

[27] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 1 where the Full Bench of Fair Work Australia found:

In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional…The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[28] It is also the case that, in considering the reason for the delay the totality of the period of delay must be considered.

[29] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 2

[30] This point was emphasised by the Full Bench in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank 3where the majority decision states:

[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[31] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 4 the Full Bench said

[31] …while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.

Consideration

[32] Mrs Baltas’ application for unfair dismissal was filed two days beyond the statutory time period specified in the FW Act.

[33] It is evident that Mrs Baltas did take steps to contact the Commission with respect to her dismissal within the 21 day period and did, in fact, visit the Commission within that time frame (on 13 March 2017). No evidence was given of what she was told on that day.

[34] Mrs Baltas was not aware of the 21 day time limit. Ignorance of the law, however, does not create an exceptional circumstance.

[35] Mrs Baltas does not know how to use a computer. In such circumstances I appreciate that she may not have been able to file her application electronically. However, Mrs Baltas has a son and had a support person with her at the hearing for the extension of time who also attended the Commission with her on 15 March 2017. Her support person speaks both English and Greek.
[36] I am satisfied that Mrs Baltas did attempt to contact the Commission within the 21 day period. Whilst the notion was rejected by ISS, I am satisfied that it is reasonable to infer from the evidence of Mrs Baltas that when she rang the Commission and was told to “do this, do this” and did not know how to do what was being asked of her, she was referring to the automated message heard when the Commission’s phone number is called. In giving this evidence Mrs Baltas gestured with her finger as if pressing a phone number pad. The automated message tells callers to “press 1” and then lists all of those reasons for pressing 1, requires listeners to press 2 for a different menu list, press 3 for a further menu list and then press 4 if the matter is in relation to dismissal.

[37] In observing Mrs Baltas while she gave evidence I accept that, while she can understand and speak English, she did not fully comprehend some of the nuances of English. I am satisfied that, due to language barriers and the length of the menus presented when a person calls the Commission, it is reasonable to infer that a person who has English as a second language may not fully comprehend what is being asked of them, become confused and not see the call through to completion.

[38] After attending the Commission on 13 March 2017 Mrs Baltas then waited for a phone call the following day and, being granted an appointment, attended the Commission on 15 March 2017 when she made her application. Mrs Baltas did not make her application on 13 March as she did not have the money necessary and she does not have a credit card. In this respect while she does not provide an explanation as to why she waited until 13 March 2017 (20 days after her dismissal) to come to the Commission in person nor why she did not put her application in at that time she does provide some explanation as to why her application was not made within 21 days.

[39] I am satisfied that there are genuine reasons why Mrs Baltas did not make her application within time. I am satisfied that, when presented with a means by which she could make her application (by attending the legal advice clinic on 15 March 2017) Mrs Baltas attended the appointment and made her application that day. In her circumstances I am satisfied that this provides an explanation for the delay.

[40] This is a highly contested factual matter. The reasons for Mrs Baltas’ dismissal are severe but Mrs Baltas has made some equally unsettling allegations against her supervisor.

[41] It is not appropriate, at this time, to make any assessment of the merits of the case. Until evidence is heard the facts cannot be discerned. For this reason I have considered the merits of the case a neutral consideration.

[42] I accept that there is no prejudice to the employer in granting an extension of time.

[43] I have taken into account the submissions of ISS that there are no exceptional circumstances in this case that would warrant the grant of an extension of time.

[44] I accept that the circumstances in this case are not unusual or rare. They are a set of commonly encountered circumstances – an older person from a non-English speaking background, technologically illiterate and confronted with a range of options on a phone menu.

[45] In this case, where the delay is minimal and the reasons for dismissal are highly contested I am satisfied that exceptional circumstances exist – caused by a confluence of relatively ordinary matters – such that I should grant Mrs Baltas an extension of time within which to make her application.

[46] An order 5 granting Ms Baltas an extension of time to make her application until 15 March 2017 will be issued with the decision.

[47] The application will now be referred for further programming.

COMMISSIONER

Appearances:

H. Baltas on her own behalf.

J. Moore for ISS Facility Services Australia Ltd T/A ISS Facility Services.

Hearing details:

2017.

Melbourne:

May 31.

 1 (2011) 203 IR 1, [13].

 2   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 403.

 3   [2015] FWCFB 287.

 4   [2016] FWCFB 349.

 5   PR593474.

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