Helen Lyberopoulos v Reidwell Investments BT Pty. Ltd. T/A Coco Cubano Blacktown

[2014] FWC 9256

[2014] FWC 9256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Helen Lyberopoulos
v
Reidwell Investments BT Pty. Ltd. T/A Coco Cubano Blacktown
(U2014/8864)

DEPUTY PRESIDENT BOOTH SYDNEY, 18 DECEMBER 2014

Application for relief from unfair dismissal - Jurisdictional objection - minimum employment period.

[1] Helen Lyberopoulos was employed by Reidwell Investments MV Pty Ltd from 20 January 2014 in the position of full-time manager for two restaurants owned by Reidwell called Coco Cubano.

[2] She was dismissed on 3 August 2014 by Mr Jon Reid , co-owner of Reidwell. She has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act. Reidwell objects to her application. Mr Reid says that she has not served the minimum employment period relevant to his business of 6 months. 1 He says she is not protected from unfair dismissal by the Act and her application cannot be considered.

[3] On 19 May 2014 her employment was transferred from Reidwell Investments MV Pty Ltd to Reidwell Investments BT Pty Ltd. Mr Reid agrees that the two Reidwell companies are related body corporates as both are co-owned by he and his wife. He agrees that Ms Lyberopoulos’s employment is continuous for the purposes of this application and the transfer of employment is not advanced as a reason for her not having served the minimum employment period.

[4] Mr Reid says that she has not served the minimum employment period because she took unauthorised leave from 15 May 2014 to 11 June 2014. He says that this period of some 3.5 weeks should be deducted from the duration of Ms Lyberopoulos’s employment which amounts to six months and 13 days. He says if this period was deducted she would not have served the minimum employment period of 6 months.

[5] Ms Lyberopoulos says that as manager of the Coco Cubano restaurants she was responsible for rosters and scheduling annual leave for employees including herself. She says that she rostered herself off for her regular 2 days off per week, over a span of two calendar weeks, and 5 days of annual leave which enabled her to have the 9 day period 2 June to 10 June off work. During this time she says she went overseas to visit a sick relative. She says she advised Mr Reid of her absence. She says that the period of leave was authorised and should not be deducted from her duration of employment for the purposes of this application. She says that even if this period was deducted from her period of employment she would still have served six months and 4 days, more than the minimum employment period.

[6] This matter was before me on 19 November 2014 and both Ms Lyberopoulos and Mr Reid were self represented. Mr Reid appeared by telephone as he was unable to travel to Sydney due to illness. Neither Ms Lyberopoulos nor Mr Reid had material available at the hearing to provide to me that was relevant to their submissions. I asked them to provide me and each other with any such material by 26 November 2014. Ms Lyberopoulos provided material but Mr Reid did not. My Associate wrote to Mr Reid on 3 December 2014 asking him to provide a response to Ms Lyberopoulos’s material by close of business on 4 December 2014. He did not reply.

[7] The questions I have considered are:

i. Was Ms Lyberopoulos on authorised leave? If yes, then her period of continuous service was not broken and she was employed for more than the minimum employment period. 2

ii. When did her period of absence commence and conclude? If it was for 13 days or less, whether authorised or not, she was employed for at least the minimum employment period. If it was unauthorised and was for more than 13 days she was employed for less than the minimum employment period.

[8] During the hearing Mr Reid submitted that Ms Lyberopoulos “disappeared out of the store without any approval, formal approval, or permission and went to the US ... nobody knew where she was.”  3 He could not be certain of when she “disappeared” but based on the rosters he believed it was around 15 May 2014. He agreed she returned to work on 11 June 2014.

[9] Ms Lyberopoulos submitted that she advised Mr Reid of her absence. She provided an email dated 17 May 2014 to Mr Reid in which she said:

“I will also need to take a couple of extra days off the first week of June to attend a family function. Hope that isn’t too much of a problem. I will make sure all is operating safely though.”

[10] She provided her payslips for the periods ending 8 June 2014 and 22 June 2014. The pay slip for the period ending 8 June 2014 showed that she was paid for 36 ordinary hours and 40 hours annual leave. The pay slip for the period ended 22 June 2014 showed that she was paid for 76.02 ordinary hours.

[11] She said that she had worked as usual up to 1 June 2014 and flew to Hawaii that evening. She provided rosters for the period 26 May to 1 June and 11 June to 15 June that reflected this submission. She provided a Qantas E-Ticket Itinerary and Receipt that showed a flight from Sydney to Honolulu on 1 June 2014 and a flight from Honolulu Sydney to on 9 June 2014. She provided three letters from colleagues who said that they conversed with or worked with her on 1 June 2014. Two of these colleagues commented that she called them while she was away to check on the business.

[12] In the light of this material, and in the absence of any material to support Mr Reid’s submissions, I conclude that Ms Lyberopoulos was absent on authorised leave. Therefore her period of employment was more than 6 months and she has served the minimum employment period.

[13] I conclude that at most her period of absence was for a period of 9 days between 2 and 10 June 2014 inclusive. Had this been a period of unauthorised leave it would not have reduced her employment period below the minimum employment period of 6 months.

[14] Reidwell Investments BT’s jurisdictional objection of is dismissed.

[15] Ms Lyberopoulos’s application will be forwarded to the Commission’s Unfair Dismissal Case Management Team for allocation to a Member to hear the merits of her case.

DEPUTY PRESIDENT

Appearances:

H Lyberopoulos, The Applicant

J Reid for Reidwell Investments BT Pty. Ltd T/A Coco Cubano Blacktown, by telephone

Hearing details:

2014.

Sydney:

November 11

Final written submissions:

26 November 2014

 1 Sections 382 and 383 Fair Work Act 2009.

 2 Section 22 Fair Work Act 2009.

 3   Transcript PN 30

Printed by authority of the Commonwealth Government Printer

<Price code A, PR559324>