Maria Elvira Matera v Aero-Care Flight Support Pty Ltd

[2011] FWA 534

[2011] FWA 534

FAIR WORK AUSTRALIA

DECISION

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

Maria Elvira Matera
v
Aero-Care Flight Support Pty Ltd
(U2010/13746)

COMMISSIONER RAFFAELLI SYDNEY, 1 FEBRUARY 2011

Unfair dismissal - extension of time.

[1] On 29 October 2010 Ms Maria Matera (the Applicant) made application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). In her application (Form F2) she said that she was “. . . notified of dismissal: 1/10/10” and the “. . . dismissal took effect: 20/10/10”.

[2] In response to the application, her former employer, Aero-Care Flight Support Pty Ltd (the Respondent) said that the employee was dismissed on 1 October 2010 and that the dismissal took effect on that date. It also raised an objection to the application based on the contention that it was lodged 28 days following termination.

[3] As a consequence, the matter was listed for hearing before me on 17 December 2010 to determine whether the application was indeed lodged out of time, and if it was, whether time for lodgement should be extended.

[4] In her written evidence (Exhibit M1) the Applicant said that on 30 September 2010 she was directed to attend a meeting with two managers of the Respondent, Mr Turgut Ercan and Ms Carolina Gallego. Serious allegations were made by the Respondent’s managers.

[5] According to the Applicant, on 1 October 2010, she was directed to meet with Mr Ercan. It was her evidence that Mr Ercan said words to her to the effect of “I have no choice but to terminate you”. She asked him to reconsider his decision and he had responded that he had made his decision.

[6] It was her further evidence that on 5 October 2010, she telephoned Mr Ercan and advised him that she had previously booked to travel to Samoa using her staff travel benefits and was unsure what the impact of the 1 October 2010 meeting would have on those arrangements. According to the Applicant, Mr Ercan responded in words to the effect of “you have not been terminated at this point and you can proceed on your holiday and we will talk about it on your return”.

[7] She had then proceeded to Samoa leaving Sydney on 17 October 2010. While away, her daughter informed her that Mr Ercan contacted her and had advised that the Applicant’s staff travel had been cancelled and she would need to make her own separate arrangements for her return.

[8] She returned to Australia on 27 October 2010. On examining text messages on her phone, she discovered a text from Mr Ercan sent on 20 October 2010 advising her that her staff travel was cancelled.

[9] It was her evidence that because of the conversation with Mr Ercan on 5 October 2010, she did not think that she had been terminated at that time. In her view, the termination took effect on 20 October 2010 (the date of Mr Ercan’s text message). She acted promptly in then lodging this application on 29 October 2010.

[10] In her oral testimony she indicated firstly, that she had never received written notice of termination.

[11] She agreed that at the meeting with her employer on 1 October 2010, she was told that she would be terminated.

[12] She agreed that between 1 October 2010 and her leaving for Samoa on 17 October 2010 she was neither paid nor given any shifts to work.

[13] The Applicant denied receiving a letter sent by the Respondent dated 4 October 2010 which confirmed that she had been removed from the Company’s roster and no further shifts would be offered to her. (The Applicant had been at all times a casual employee).

[14] She disagreed that a conversation about her forthcoming travel had occurred on 30 September 2010 and not on 5 October 2010.

[15] She agreed that she had not received any pay on 6 October 2010 (the Respondent’s pay day) and had not rung the Respondent to ask why she had not received any payments.

[16] Mr Turgut Ercan, the Respondent’s manager at Sydney international terminal, gave evidence in the form of a written statement (Exhibit AC2).

[17] His evidence was that he and Ms Gallego had met with the Applicant and raised the Respondent’s concerns in relation to her conduct. He had put to her that her actions looked like fraudulent behaviour and amounted to wilful misconduct. She was stood down pending further discussions.

[18] On 1 October 2010, he telephoned the Applicant inviting her to a meeting that afternoon in order for her to further explain or justify her actions. She was informed that she could have a person accompanying her. He also sent her an email to similar effect.

[19] At that meeting on 1 October 2010, he and Ms Gallego met with the Applicant who was accompanied by a friend. He said that he gave the Applicant an opportunity to further explain her actions. He advised the Applicant of her immediate termination of employment.

[20] In cross-examination he indicated that he had already determined prior to the meeting of 1 October that the Applicant would be terminated. He decided to give her one more chance in the interest of fairness and so she could put her side of things. If she was unable to satisfy him she would be terminated at the meeting.

[21] In his oral evidence, Mr Ercan said that on 4 October 2010 he forwarded a letter to the Applicant. In that letter (Exhibit AC1) he confirmed her termination.

[22] He agreed that the Applicant had telephoned him on 5 October 2010. He told her that she needed to return her airport security card and other company property. He denied that he ever suggested that she had not been terminated. He also denied that he had told her in that conversation that she could still utilise staff travel benefits.

[23] He did recall that some time earlier, when the alleged conduct had first been discussed, that the Applicant had raised her imminent holiday and the issue of staff travel. He had told her that he was not going to pre-empt the investigation and consequently no decision was made as to her staff travel. However, he was absolutely sure that he did not tell her on 5 October 2010 that she could proceed on staff travel.

[24] He denied that the Applicant expressed any confusion as to her employment status on 5 October. He made it clear to the Applicant that the termination was final, and that she had to return her security passes.

[25] He later became aware that the Applicant was travelling using staff benefits on the day of her departure. His duty manager advised him that the Applicant had checked in and was at the gate boarding the aircraft and about to travel. He did not take steps to deny the Applicant her travel benefit by cancelling her ticket as this would have caused difficulties with the airline and other passengers.

[26] Following the Applicant’s departure overseas, he took steps to cancel her return ticket. He left a text message on her mobile phone explaining that he had cancelled her return ticket and asking her to contact him. He also advised her that she needed to organise her own return ticket. He also spoke to the Applicant’s daughter advising her of that fact.

[27] Evidence was given by Ms Gallego. Her evidence included that at the meeting of 1 October 2010, it was indicated that the Applicant was being dismissed due to her conduct and asked to return the Company property and the security cared. The Applicant did not return the property.

[28] She also said that Mr Ercan had not used the word “terminated”. Rather, he said that she was to be released from the roster.

Determination

[29] As to the late filing of the application, the statutory requirements are set out in section 394(2) and (3) of the Act:

“394 Application for unfair dismissal remedy

. . .

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[30] This matter concerns the issue of late filing and extension, only if the Respondent’s position is accepted. It was the submission of Ms Ryan, solicitor for the Applicant, that the application was not filed out of time. It was filed on 29 October 2010, less than 14 days after the text message of 20 October 2010 left by Mr Ercan on the Applicant’s mobile phone. It was the position of the Respondent, represented by Mr Rochfort that the termination had taken place on 1 October 2010, and therefore the application had been made late.

[31] It is clear from the Applicant’s own evidence (e.g. Exhibit M1/para 11) that Mr Ercan terminated her employment at the meeting of 1 October 2010 and that he told her he would not reconsider his decision.

[32] There was also the evidence of Mr Ercan that a written letter confirming such termination was sent on 4 October 2010. The Applicant says she never received that letter. I accept the evidence of Mr Ercan that he sent the letter on 4 October 2010. I also accept the evidence of the Applicant that she did not receive it. It is probable that it went astray. However, its absence does not affect the action of termination which occurred on 1 October 2010.

[33] That leaves the issue of the telephone conversation of 5 October 2010. The evidence is contradictory. I have decided to prefer the evidence of Mr Ercan. I found Mr Ercan to be a forthright and honest witness. His evidence as to what occurred on 5 October 2010 is also consistent with what had occurred on 1 October 2010 when the Applicant was terminated.

[34] Mr Ercan’s frankness was apparent in his acceptance that some discussion as to staff travel had occurred. He thought it was on 30 September 2010.

[35] I consider that the Applicant may have been either confused as to the timing of the discussion or she was not being truthful when she said staff travel and her holiday was discussed on 5 October 2010.

[36] In all the circumstances, I find that the conversation of 5 October 2010 was along the lines evidenced by Mr Ercan.

[37] As a consequence of that finding, the Applicant knew and continued to know that she had been terminated on 1 October 2010. Nothing that happened on 5 October 2010 suggested otherwise. She did not take steps to lodge an application within 14 days from that termination.

[38] As a consequence, I need to turn my mind towards the provision of section 384(3) of the Act, and to whether I should allow a further period for the application to be made.

[39] As to the reason for the delay (section 394(3)(a)), given my earlier findings, the Applicant knew that her employment had ended on 1 October 2010 and there was no basis for her believing that this situation had changed, including after the 5 October 2010 telephone conversation concerning which I have found that Mr Ercan said nothing about her travel, nor that her employment was still on foot. I note that she was still in Australia for the 14 days after 1 October 2010. I find that there is no acceptable explanation for not acting sooner.

[40] The Applicant became aware of her termination at the time it took effect (section 394(3)(b)).

[41] I am satisfied that the Applicant did take action to dispute the dismissal.

[42] As to whether the Respondent suffered any prejudice as a result of the lateness in filing (section 394(3)(d)), I find that no such prejudice has been shown.

[43] Section 394(3)(e) of the Act deals with a consideration of the merits of an application. The proceedings before me revealed some possible misconduct in the way some passengers were upgraded into premium seats. However, neither Mr Ercan nor Ms Gallego were able to fully explain the seat allocation system of the client airline that may have directly responded to the Applicant’s explanation for her conduct. In all the circumstances, including the absence of better evidence, I find that it can not be said that the application is without merit.

[44] Section 394(3)(f) is not applicable here.

[45] Taking into account my findings as to those matters identified in section 394(3), I am not satisfied that there are exceptional circumstances so as to allow a further period in which the Applicant could have made her application.

[46] The application is dismissed as it was not made within 14 days after the dismissal took effect and no other period has been allowed.

COMMISSIONER

Appearances:

S. Ryan solicitor for the applicant.

P. Rochfort for the respondent.

Hearing details:

2010
Sydney:
December 17.

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<Price code C, PR506232>