Mr Dimitrios Athanasopoulos v Pylo Steel Furniture P/L

[2015] FWC 6671

[2015] FWC 6671

FAIR WORK COMMISSION

DECISION

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

Mr Dimitrios Athanasopoulos
v
Pylo Steel Furniture P/L
(U2015/9746)

COMMISSIONER WILSON MELBOURNE, 29 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] This matter concerns an application made by Dimitris Athanasopoulos alleging unfair dismissal against his former employer, Pylo Steel Furniture Pty Ltd. Mr Athanasopoulos’ application to the Fair Work Commission was first received in the Fair Work Commission by email on 28 July 2015, although there was at least one attempt to make an application at an earlier time, on 11 July 2015, when an email was received by the Commission without an unfair dismissal form attached. The document filed with the Commission on 28 July 2015 is dated in the signature block as 8 July 2015. While Mr Athanasopoulos’ application refers to the date upon which his dismissal took effect as 11 June 2015, he agreed in the hearing with the Respondent’s material that it took effect on 12 June 2015.

[2] Section 394(2) of the Fair Work Act 2009 requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 25 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Mr Athanasopoulos for the making of his application, and for the reasons set out below, I am not satisfied that a further period should be allowed to him for the making of his application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394 (3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Pylo Steel Furniture, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted. It argues there are no exceptional circumstances that would lead the Commission to exercise its discretion to extend the period of time, for the time allowed, to Mr Athanasopoulos for the making of his application.

[6] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of Mr Athanasopoulos, the Applicant. No evidence was called on behalf of the Respondent.

[7] The material before me discloses that the circumstances by which Mr Athanasopoulos’ employment ended include different sets of contentions on the part of each party.

[8] Mr Athanasopoulos’ application, and his evidence, refers to his dismissal being the consequence of taking a day off sick the day prior to his dismissal, which, it is accepted, was Thursday, 11 June 2015. He says he had been employed by Pylo Steel Furniture for around 13 years, was never given any written warnings and that he was a model employee during his employment. His application says that when he returned to work on the Friday morning he was verbally abused by his employer and then dismissed. Mr Athanasopoulos evidence includes that he was sick on the day in question, and says that he was not given any reason for his dismissal and that he was told by a secretarial employee that the dismissal came about because “because I took a sick day and my boss had to do the work”.

[9] Further, Mr Athanasopoulos put forward that he;

“had no warning on the day, no previous warnings or counselling sessions and I was asked to leave the premises straight away, I was verbally abused and not given any reason (except by a third party). I didn’t know what to do so I just left.” Reference?

[10] Within the material provided to the Commission by the Respondent, Pylo Steel Furniture argue that Mr Athanasopoulos’ dismissal came about because of ongoing concerns the company had about his absence from work, and in particular because of his absence from work on 11 June 2015.

[11] In this regard, the company submits that Mr Athanasopoulos had been away from work without providing a reason on 19 occasions from May 2014. They say that his absence from the business on a regular basis, for reasons that were never substantiated despite ongoing requests, had become a concern for the company, which had only a small number of staff, five full-time and one casual employee. They argue that in the circumstances, it was not possible to operate with an employee who was unreliable.

[12] As a means to manage this situation, the company submits it instructed Mr Athanasopoulos to contact Mr Loudovaris if he was unavailable to attend work. He was also instructed to make contact through a telephone call rather than SMS. However, despite this direction, Mr Athanasopoulos apparently did not change how he notified his absence, with the Respondent submitting that he continued to contact other employees by SMS to advise them that he would not be attending work. They say that often Mr Athanasopoulos did not provide a reason for his non-attendance, and that medical certificates were not provided to substantiate his absences.

[13] On the 11 June 15 Mr Athanasopoulos did not turn up to work. The Respondent’s case is that on that day he once again contacted another staff member by SMS to advise he would not be coming into work on this day due to flat tyre on his car. Mr Athanasopoulos denies that he sent the text message to which the Respondent refers. Pylo Steel Furniture argues that a flat tyre on a car is an insufficient reason to be absent from the workplace for the full work day.

[14] Mr Athanasopoulos was then dismissed by Pylo on 12 June 2015 when he returned to work. Mr Loudovaris says that he asked the Applicant why he had not attended work yesterday, and why he failed to contact him, as previously requested, to which Mr Athanasopoulos responded that he had a flat tyre and that he sent a text message to another employee.

[15] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Mr Athanasopoulos is otherwise a person protected from unfair dismissal. Should the matter proceed to a merits hearing, a question of whether the dismissal was consistent with the Small Business Fair Dismissal Code may arise.

EXTENSION OF TIME

[16] The Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3

[17] In considering whether an extension of time should be granted to Mr Athanasopoulos, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[18] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 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.6

[19] Mr Athanasopoulos’ written submissions refer to having sent unfair dismissal documents “to the department unfair dismissal” by email on 15 June 2015, however he withdrew that claim in his oral evidence.

[20] Other than that possibility, an attempt to make an unfair dismissal application was first made on behalf of Mr Athanasopoulos on Saturday, 11 July 2015 9:33 AM, when he sent an email to the Commission. The email referred to it being an unfair dismissal lodgement, however did not attach the relevant form. In response, the Commission staff emailed Mr Athanasopoulos on Monday, 13 July 2015 at 10:07 AM advising him that an email had been received with no attachment and that:

“… we have not yet received an application. If you would like to lodge an application with the Commission, you can do so by attaching it to an email and sending it to: [email protected]”.

[21] A valid application on behalf of Mr Athanasopoulos was eventually lodged on 28 July 2015.

[22] The evidence leads me to conclude firstly that Mr Athanasopoulos was dismissed on Friday 12 June 2015, and that his application was not lodged until 28 July 2015.

[23] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Mr Athanasopoulos to lodge his application. In all, that period was a total of 25 days.

[24] Mr Athanasopoulos argues that several factors led to his application being lodged when it was. The first reason advanced is that he was not aware of his rights to contest his dismissal at the time and that he did not even know about the Fair Work Commission until a family member told him and helped him to fill in a form. Secondly, he argues that the delay came about because of his difficulties in accessing and using a computer to make the application.

[25] A third potential factor was developed, with Mr Athanasopoulos’s representative submitting that the argument that had led to his dismissal was not out of the ordinary and that what had been said by Mr Loudovaris on 12 June might have been a heat of the moment comment that was similar to things said by him on previous occasions. However, the Applicant did not support that proposition in his evidence. His evidence instead was that what had been said was not like previous occasions, and he, the Applicant, took what was said to be decisive of the end of his employment. In any event, Mr Athanasopoulos returned to the workplace on the following Monday to collect several things that would reasonably indicate he believed his employment had finished. Those things included a final payslip, his tax file number details and superannuation details.

[26] As a result, I find that Mr Athanasopoulos was aware on 12 June 2015 that his employment with Pylo Steel Furniture had ended on that date.

[27] In relation to Mr Athanasopoulos being aware of his rights, he said in giving evidence that he had advice from his representative, Mr Tsakamakis, on 22 June 2015 that he had rights he could exercise in relation to what he perceived as the unfairness associated with his dismissal.

[28] That date is within the 21 day period of time for the making of an application.

[29] As referred to above, the delay to which the Commission must have regard is the period beyond the prescribed 21 day period for lodging an application. As a result, the proposition of Mr Athanasopoulos being unaware of his rights does not explain the reason for the delay.

[30] It is also the case that, by at least 13 July 2015, Mr Athanasopoulos’ was aware that his application had not been properly received and that steps needed to be taken to ensure it was correctly submitted. Those steps were not taken until the application was filed on 28 July 2015, more than 2 weeks after the Commission drew Mr Athanasopoulos’ attention to the defective filing attempt. He has advanced no cogent reason for the filing delay over that period, or the period between the last “within time” filing date of 3 July and the attempted filing on 11 July 2015, with the only reason being proffered being that he had some difficulties with access to a computer.

[31] I find that the explanation about facing some computer difficulties as being Mr Athanasopoulos explanation for the delay in making an application to the Commission.

[32] As a result of these circumstances, I consider an acceptable reason(s) has not been put forward for Mr Athanasopoulos’ delay in in making an unfair dismissal application. Accordingly, this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[33] On the basis of the evidence before me, I am satisfied that Mr Athanasopoulos first became aware of the termination of employment on 12 June 2015. This is therefore not a circumstance where he only became aware of his termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[34] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 7

[35] Mr Athanasopoulos evidence about actions taken by him to dispute his dismissal extends only to the making of this application.

[36] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[37] The delay in the filing of the application is 25 days. The respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[38] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[39] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[40] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings factors as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 8

[41] The merits of the dismissal are strongly contested, and beyond a point that could be meaningfully resolved on the evidence before me at this time. The principal matter in dispute is whether Mr Athanasopoulos had a history of unplanned absences, as argued by the Respondent, and if so, whether the circumstances might reasonably justify his dismissal. Also relevant to this consideration is whether he had followed instructions given to him on the subject. In considering Mr Athanasopoulos’ application, I am satisfied that there is at least an arguable case on his behalf, while noting that the case is as yet untested and that Pylo Steel Furniture strenuously opposes the matter.

[42] While his case may be arguable, I do not put it as highly as a very strong case. On balance, while it is my view that consideration of this criterion resolves in Mr Athanasopoulos’ favour, I do not think it to be so compelling as to overcome the finding against him about the lack of a satisfactory explanation for the delay in making his application.

6. Fairness as between the person and other persons in a similar position

[43] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either are currently before the Commission, or have been decided in the past. 9

[44] In applying Mr Athanasopoulos’ facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to him would give rise to an expectation that there had been some process of diligent inquiry or dispute by him not long after their dismissal. However, this was not the situation in Mr Athanasopoulos’ case. When he was given advice about his rights, he did not exercise them particularly energetically; when the Commission made him aware of a defective attempt to file an unfair dismissal application, he did not act immediately, and did not act at all, for a further 2 weeks.

[45] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in making his unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for Mr Athanasopoulos for the making of an application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of his case but also to the criteria set out within s.394 (3) of the Act.

[46] After consideration of the whole the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Athanasopoulos.

[47] For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and will issue an order dismissing Mr Athanasopoulos’ application as being out of time.

COMMISSIONER

Appearances:

Mr C Tsakamakis, agent, with Mr D Athanasopoulos, for the Applicant

Mr James Sanders MST Lawyers, for the Respondent

Hearing details:

2015.

Melbourne.

September 11.

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 8   Haining v Deputy President Drake (1998) 87 FCR 248, p.250

 9   Wilson v Woolworths [2010] FWA 2480, at [24] ‒ [29]

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