Marina Del Greco v Vits (Victorian Interpreting and Translating Service) T/A Vits

[2016] FWC 3240

[2016] FWC 3240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marina Del Greco
v
VITS (Victorian Interpreting and Translating Service) T/A VITS
(U2016/6153)

COMMISSIONER BISSETT MELBOURNE, 24 MAY 2016

Application for relief from unfair dismissal - Extension of time application - application not granted.

[1] Ms Marina Del Greco has made an application seeking relief from unfair dismissal. She claims her employment was terminated by Victorian Interpreting and Translating Service T/A VITS (VITS) on 15 March 2016 with effect from 21 March 2016. Ms Del Greco is an interpreter engaged by VITS.

[2] Ms Del Greco lodged her application for relief from unfair dismissal on 12 April 2016.

[3] VITS says that Ms Del Greco is not an employee as she is a contractor such that she could not be dismissed. Further, it says that a particular department of a client (Inner South Community Health) for whom Ms Del Greco provided interpreting services each week complained about Ms Del Greco. Subsequently, she was no longer offered work from that particular area although she would be offered other relevant work from that client. It says that it continues to offer, and Ms Del Greco continues to accept, interpreting work.

[4] Ms Del Greco claims that she had two different employment arrangements with VITS under the one contract – one was for employment with respect to the particular client and the other was as a contractor. She said that the two different types of employment were evidenced through the Schedule of fees attached to the contract she originally signed with VITS in October 1997.

Legislation

[5] Section 394(2) of the Fair Work Act 2009 (the Act) requires that an application for unfair dismissal be made within 21 days of the time the dismissal took effect. Ms Del Greco made her application on 12 April 2016, 22 days after the date her dismissal took effect meaning her application was made one day out of time.

[6] The Fair Work Commission (the Commission) has the power, pursuant to s.394(3) of the Act, to extend the time within which an application 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.

[7] I have considered each of these matters.

Reason for the delay

[8] Ms Del Greco says that, on being advised that she could no longer perform work for the client, she then sought details of the complaint made against her so that she could attempt to resolve the matter directly with the client. She also attempted to resolve the matter with VITS.

[9] On 16 March 2016 Ms Del Greco received an email from the Team Manager of VITS that said ‘As discussed with Karuna yesterday unfortunately I have had to remove all the Inner South Community health jobs you were booked for up to and including 19 December.’

[10] Ms Del Greco asked that this be followed up and indicated that she would ‘request conciliation mediation with Julie’.

[11] A further email was sent to Ms Del Greco that day from Karuna De Silva, the Interpreting and Feedback Support Officer for VITS that said, in part, ‘I have asked Mary to reconsider based on the feedback provided by yourself and given that you were requested for all of these jobs. Unfortunately, the TO department have advised that they do not wish to employ your services any longer…’ Ms De Silva also indicated that Ms Del Greco should refrain from contacting Julie directly (from which I take that Julie is an employee of the client). Ms De Silva also included in the email an excerpt from Ms Del Greco’s contract in relation to the offering of work to interpreters by VITS and its obligations in that respect.

[12] Ms Del Greco responded to this email on 18 March 2016 in which she questioned VITS’ refusal to review her ‘unfair dismissal of all of my jobs for the rest of this year with the Inner South Community Centre.’

[13] On 6 April 2016 Ms Del Greco sent a further email to Ms De Silva in which she requested an ‘urgent meeting with the CEO to discuss VITS’ treating me unfairly.’

[14] Ms De Silva responded that day indicating that she had been in touch with the client ‘checking if they will consider having you back’ and indicating that she hoped to ‘have an answer from them next week.’ She further indicated that the CEO was on leave and, in the meantime, VITS was in contact with Inner South regarding the matter.

[15] Ms Del Greco says that she waited for a response as requested and it was only when she did not receive a further response to her email on 6 April 2016 that she took action to make an application for unfair dismissal. She says that she was attempting to resolve the matter internally and it was when this failed that she made her application. The time between the last email and making her application was because she was asked to wait for an answer and she did and it was when she did not receive a response she made the application.

[16] Whilst it may have been reasonable for Ms Del Greco to attempt to resolve the matter with VITS there is no specific reason she gives for the delay in making her application beyond that. Her application was one day out of time yet Ms Del Greco could provide no reason for this or why she had not made the application a day earlier.

When person first became aware of dismissal

[17] Ms Del Greco was aware on 15 or 16 March 2016 that she would no longer be provided with the interpreting work that she had otherwise undertaken each week for Inner South Community Health.

Action taken to dispute the dismissal

[18] As outlined above Ms Del Greco wanted to meet with Julie from Inner South Community Health but was told not to do so (even though Inner South Community Health was not Ms Del Greco’s employer and she agrees it was not her employer).

[19] She sought a meeting with the CEO of VITS but this did not occur.

Prejudice to the employer

[20] No submissions are made as to prejudice to the employer caused by the delay in making the application.

Merits

[21] VITS submits that Ms Del Greco is a contractor and therefore not covered by unfair dismissal provisions of the Act.

[22] The submissions of the CEO of VITS, Ms Elizabeth Compton and the records of VITS is that, from the time of her alleged dismissal, Ms Del Greco continues to be offered and accepts work and has future interpreting work booked through VITS.

[23] It appears that the issue between the parties goes to the decision of a regular client of VITS to request that Ms Del Greco no longer be provided as an interpreter. Ms Del Greco takes issue with this and apparently wants Ms Compton to intervene with the client on her behalf. Ms Del Greco seems to consider that because she had accepted the work from the client in advance (she accepted a regular bookinghad been booked in for each Monday until the end of the year) that she was an employee and therefore had been dismissed.

[24] Ms Del Greco agrees that her employer is VITS. It is evident that VITS has removed Ms Del Greco from work for the client at the client’s request. That is, it is not a direct action of VITS that has led to Ms Del Greco no longer receiving work from the client but is a result of a decision of the client. In this respect, even if Ms Del Greco was found to be an employee of VITS (and this is not certain) it is difficult to see how she could sustain a claim that her employment had been terminated at the initiative of her employer.

[25] The decision by the client of VITS is not a matter that goes to dismissal and indicates that, even if Ms Del Greco did get past the next jurisdictional hurdles that she is, in fact, an employee and she has been dismissed, there appears to be little merit to her claim, even if her case, as presented, was not contested.

[26] Ms Del Greco sought to rely on the original schedule to her 1997 contract as evidence of her status as an employee. Neither she nor VITS could produce this original schedule. In any event I note that clause 3 to her contract allows VITS to vary the fees in the schedule. Nothing otherwise in the current schedule suggests Ms Del Greco was ‘employed’ by VITS or the client.

Fairness

[27] Nothing has been put to me on this matter and I have not had regard to it in reaching my decision.

Consideration

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

[29] 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.

[30] Taking into account all of the circumstances set out above I am not convinced that there are exceptional circumstances such that an extension of time should be granted.

[31] Whilst Ms Del Greco provides an explanation for some of the delay in making her application – that she was waiting to hear back from VITS on the outcome of its contact with the client – she could not provide an explanation for the entirety of the delay. This, considered in in conjunction with the apparent lack of merit of her case, is such that I do not consider that there are exceptional circumstances.

[32] The application for an extension of time is refused. The application for relief from unfair dismissal is therefore out of time and is therefore dismissed.

COMMISSIONER

Appearances:

M Del Greco the applicant.

E Compton from the respondent.

Hearing details:

2016.

Melbourne:

May 13

 1 (2011) 203 IR 1.

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