Miss Gina Lagana v Vision and Learning Institute

[2013] FWC 2666

[2013] FWC 2666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Gina Lagana
v
Vision and Learning Institute
(U2013/6326)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 1 MAY 2013

Application for unfair dismissal remedy - extension of time for lodgement of application - application made to Fair Work Ombudsman - extension of time refused.

[1] On 9 February 2013 Miss Lagana lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), with respect to the termination of her employment with the Vision and Learning Institute (VLI). The application was not resolved through the telephone conciliation process and was referred to me for determination. On 14 March 2013 VLI lodged a Form F4 in which it objected to the application and sought that it be dismissed on the basis that it was made outside of the legislative time limit and that the VLI was a small business, the dismissal was not unfair and further proceedings involved unsustainable costs.

[2] The application was the subject of a directions conference with me on 26 March 2013. At this conference the parties agreed that it would be considered through a determinative conference on 22 April 2013. I subsequently confirmed that this conference would consider:

• whether an extension of time was required and, if so, whether it should be granted, and



• whether the Small Basis Fair Dismissal Code (the Code) has application, and, if so whether Miss Lagana’s dismissal was consistent with this Code.

[3] Both parties provided various materials prior to the conference of 22 April 2013. At this conference Miss Lagana was represented by Mr Hnoudis as agent while Ms Sayer, the VLI General Manager and Mr and Ms Kenefick, the VLI Directors, appeared for the respondent.

[4] I have considered all of the material provided to me and the evidence before me in reaching a conclusion with respect to the two initial issues which were the subject of this conference.

[5] The brief background to the application is that Miss Lagana worked for VLI as a receptionist from 28 September 2009. There is no dispute that she was dismissed on 13 November 2012. Ms Lagana was given a letter confirming the termination of her employment on that day and advised that she would be paid three weeks pay in lieu of notice.

[6] Miss Lagana’s application was lodged some 67 days outside of the 14 day time limit specified, at that time in s.394(2).

[7] There is no dispute that, at the time of the termination of Miss Lagana’s employment, VLI employed fewer than 15 employees and accordingly that the Small Business Fair Dismissal Code (the Code) had application to the circumstances of that termination of employment.

The Evidence

[8] Miss Lagana’s evidence was that some six days after her dismissal she initiated a claim through the Fair Work Ombudsman (FWO) for unpaid wages, annual leave entitlements and, significantly, unfair dismissal. She asserts it was not until this matter was the subject of a telephone mediation conference on 4 February 2013 that she was made aware that her claim, that she was unfairly dismissed, could not be progressed through the FWO and required an application to the Commission. Ms Lagana lodged this application some five days later.

[9] Notwithstanding that the primary reason Miss Lagana proposed for the delay, related to her reliance on the FWO action, Miss Lagana asserted that other factors relevant to the delay related to her mental health in respect of which she provided a doctors certificate confirming that she had been referred to a psychologist. She advised that she had seen the psychologist in late December 2012 or early January 2013. Her evidence did not go to the advice provided by this psychologist.

[10] Further, Miss Lagana advised that her parents had both been unwell and she had been required to care for them.

[11] In terms of the merits of the application, Miss Lagana’s evidence was that she started work later than normal for some weeks prior to having sick leave for a foot operation in September 2012 but that this was in response to an invitation to work reduced hours which was issued by Ms Sayers.

[12] Miss Lagana’s evidence was that she and two other VLI employees were given a document described as a formal warning on 12 October 2012. This was in the following terms: 1

“As discussed as today’s meeting, we are issuing you with a formal warning regarding the following issues:

• Arriving late to Work;



• Use of company internet/computers for personal use during working hours; and



• Use of mobile phone during working hours.

Each of these issues has been addressed with you previously during Employee Development Meetings and Staff Meetings.

Arriving Late to Work

It is a requirement that you arrive to work prior to your start time so you are ready to commence work at 9:30am. In case of an emergency or extenuating circumstances, you are required to contact the General Manager or Directors to advise if you will not be at work on time.

Internet/Computer Usage

Effective immediately, company computers are not to be used for personal use without the expressed permission of the General Manager or Directors. Your company email address is to be removed from any personal websites or subscriptions immediately.

Mobile Phones

Mobile phones are to be kept in lockers during working hours. Special permission will be granted to employees during emergencies/special circumstances.

We strongly believe that these are contributing factors to poor work ethic and low moral within the office. Because of this, an immediate warning will be issued to any employee not adhering to the above requirements. Continued warnings may result in termination.

We value your contribution to the company and hope we can work together to make a happy and productive workplace for everyone.”

[13] Miss Lagana’s initial evidence was that she was never late for work until the day of her dismissal. She later conceded that she may have been late on unspecified occasions.

[14] Miss Lagana asserts that, following her foot surgery on 22 October 2012, she was off work from that date to 5 November 2012. She provided a doctors certificate for this absence.

[15] Miss Lagana relied on her timesheets to support her position that after she was given the 12 October 2012 advice she was not late for work before the termination of her employment on 13 November 2012.

[16] Miss Lagana asserts that despite the fact that she was not late for work, she was given a written warning on 9 November 2012 in the following terms: 2

“On the 12th of October 2012, you were given a formal warning relating to several matters, including arriving late to work.

Prior to that, during an Employee Development Meeting with myself on the 5th of September, I advised you that since January 2012, you had taken 13.5 unpaid days off, and 5.9 sick days.

Since our EDM, you have taken a further 12 days off without pay and continue to arrive late to work on a regular basis.

Whilst you are entitled to sick leave, your regular absence and arriving late to work is causing strain on other employees.

We are sincerely sympathetic to your ongoing sickness, but we are unable to continue to accommodate any additional time off without pay or arriving late to work.

From the date of this letter, you are required to provide a Doctors Certificate for any time you are absent from work. This includes days off, arriving late to work or leaving early from work.

We regret to advise that if you do not provide a Doctors Certificate from now on, we will issue you with a formal warning and will terminate your employment.

Please consider this your second formal warning.”

[17] Miss Lagana advised that on 13 November 2012 she was three minutes late for work. She was called to a meeting with Ms Sayers and Mr and Ms Kenefick and was advised of the termination of her employment and was given the following letter: 3

“Further to our meeting on Friday the 9th of November and the 12th of October 2012, you arrived late to work again this morning.

You were advised on Friday that you are required to provide a doctors certificate for any time you have off of work, including arriving late.

It is extremely disappointing that you continue to demonstrate your lack of commitment to this company, despite being given numerous opportunities to rectify the situation.

Gina, it is with regret that I advise that you are no longer suitable to carry out the requirements of your position and we advise that your employment here at the Vision and Learning Institute has been terminated, effective immediately.

We have sought advice from Fair Work SA and we are required to give you 3 weeks notice of termination. This will be paid to you on the 27th of November in accordance with our normal pay cycle. At this time, we will pay you any outstanding annual leave.

We are saddened that you will be leaving us Gina, but we feel you have left us with no alternative.

We sincerely wish you all the best in the future.”

[18] By arrangement, Miss Lagana attended the VLI premises on 16 November 2012 with two associates so as to return her uniform and collect her separation certificate and a copy of her employment contract.

[19] Mr Hnoudis’ evidence was that he participated in the FWO mediation with Miss Lagana on 4 February 2013 and that unfair dismissal was raised at the conclusion of a conference when the mediator explained the constraints on the agreed settlement.

[20] Ms Sayers’ evidence was that Miss Lagana was regularly late for work. She advised that late starts were not generally recorded in employee time books but that given the frequency of Miss Lagana’s lateness, she was given a warning on 9 November 2012 after she was 20 min late on that day. Ms Sayers had required that Miss Lagana support absences with doctors certificates because Ms Lagana often said she was unwell.

[21] Ms Sayers participated in the FWO telephone mediation on 4 February 2013. Her evidence was that the mediator was about to conclude the conference when she provided advice that the agreed terms of settlement did not preclude Miss Lagana from pursuing an unfair dismissal claim.

[22] Mr Kenefick’s evidence was that he also participated in the 4 February 2013 FWO mediation and recalled the mediator confirming that the agreed terms of settlement did not prohibit an unfair dismissal application.

[23] Ms Beaumont is an employee of VLI. Her evidence was that all of the administrative staff, including Miss Lagana, were regularly late for work prior to the general warning given on 12 October 2012 but that Miss Lagana was most frequently late. Ms Beaumont noted that Ms Lagana was late for work on the day of her dismissal.

[24] Ms Beaumont’s evidence also went to other aspects of Miss Lagana’s employment and to events following the termination of her employment.

Extension of time

[25] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

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

[26] I have considered each of the factors specified in s.394(3) in the circumstances of this case.

Reason for the delay

[27] Miss Lagana proposes three reasons for the late lodgement of her application. Firstly, she asserts that, on 19 November 2012, she filed an application with the Fair Work Ombudsman through which she sought remedies relative to her annual leave and wage entitlements and, she understood, the termination of her employment.

[28] Miss Lagana’s complaint to the FWO is fundamentally directed at recovering payments and entitlements she believed were due to her. These include the issue of payments due to her on her dismissal. The complaint is not an unfair dismissal complaint.

[29] I have concluded that Miss Lagana became aware of the capacity to make an unfair dismissal application at the conclusion of the FWO mediation on 4 February 2013. At this stage, an agreement had been reached relative to her underpayment claims. I am not satisfied that Miss Lagana pursued the FWO claim as if it was an unfair dismissal application.

[30] Accordingly, I do not accept that the substantial delay was caused by the erroneous lodgement of an unfair dismissal claim with FWO. In that respect, the reason for the delay was simply that Miss Lagana was unaware of unfair dismissal remedies over the time within which this claim could be lodged. Ignorance of the law is long established as an inadequate reason upon which to found an extension of time.

[31] I have considered whether Miss Lagana’s mental health represented an acceptable reason for the delay. The advice of 12 April 2013 provided by Ms Lagana’s doctor confirms that, since the termination of her employment she has been "unwell, run-down and stressed" 4 and that her lack of the income and financial obligations have contributed to depression and anxiety.

[32] Notwithstanding that no evidence of these psychologist assessments has been provided to me, I have accepted that Miss Lagana has been anxious and depressed. She was nevertheless able to lodge her FWO claim and participate in mediation about that claim. She was able to lodge this application five days after being alerted to the FWC jurisdiction. I do not consider Miss Lagana’s mental health has been established to me as an acceptable reason for the delay.

[33] Finally, Miss Lagana’s evidence was that she has been caring for her unwell parents. No further evidence about what this involves has been provided to me. I am not satisfied that any caring duties Miss Lagana undertook represent an acceptable reason for the delay. Again, in reaching this conclusion I have noted that Miss Lagana was able to file and pursue her FWO claim and then act on this matter when she became aware of the unfair dismissal application opportunity.

Whether Miss Lagana became aware of the termination of her employment after it took effect.

[34] Miss Lagana was dismissed on 13 November 2012. She was given written and verbal advice to this effect on that day.

Action to dispute the dismissal

[35] I have concluded that Miss Lagana’s FWO application was not directed at pursuing an unfair dismissal remedy. Nevertheless, I accept that she raised and pursued a general complaint against VLI and that it was clear that she was unhappy about the manner of her dismissal.

Prejudice to the employer

[36] I have concluded that the granting of an extension of time would prejudice VLI to the extent that evidence about Miss Lagana’s timekeeping would depend on recollections because inadequate time records were kept. That said: I do not consider this to be a significant factor.

Merits of the application

[37] I have concluded that there were significant inaccuracies in Miss Lagana’s evidence about her timekeeping. I have also concluded that VLI’s practice of allowing incorrect time book entries which did not record actual starting and finishing times was inherently flawed.

[38] Notwithstanding these concerns, I consider that the proper application of the Small Business Fair Dismissal Code is likely to give rise to a conclusion that the termination of Miss Lagana’s employment was not unfair. In summary terms, Miss Lagana was warned about her timekeeping and, shortly thereafter, did not comply with that warning.

[39] Consequently, the merits of the application go against an extension of time.

Fairness with persons in similar situations

[40] I am satisfied that the application of the approaches generally followed within the Fair Work Commission favour the refusal of an extension of time in this circumstance.

Conclusion

[41] My consideration of the factors set out in s.394(3) mitigates against an extension of time. Further, I do not regard Miss Lagana’s circumstances as exceptional such that they favour an extension of time. The request for an extension of time is refused. It consequently becomes unnecessary that I review the Small Business Fair Dismissal Code in detail.

[42] The application is dismissed. An Order [PR536173] reflecting this decision will be published.

SENIOR DEPUTY PRESIDENT

Appearances:

J Hnoudis representing the applicant.

K Sayes (J and D Kenefick) for the respondent.

Hearing details (Determinative Conference):

2013.

Adelaide:

April 22.

 1   Exhibit L1, Attachments - letter of 12 October 2012

 2   Ibid, Attachments - letter of 9 November 2012

 3   Ibid, Attachments - letter of 13 November 2012

 4   Ibid, Attachments - letter of 12 April 2013 from Adelaide Medical Solutions

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<Price code C, PR536172>