Mrs Leticia Liousas v Aveo Group Limited

[2016] FWC 6902

[2016] FWC 6902

FAIR WORK COMMISSION

DECISION

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

Mrs Leticia Liousas
v
Aveo Group Limited
(U2016/7924)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 3 OCTOBER 2016

Application for relief from unfair dismissal—jurisdictional objection—extension of time refused.

[1] Mrs Leticia Liousas was employed as a Personal Care Assistant with Aveo Group Limited (Aveo Group) at the Veronica Gardens facility. Mrs Liousas was dismissed from her employment by Aveo Group on 26 April 2016 for a breach of her duty of care to residents by inappropriately dispensing medication and sleeping on the job. Aveo Group submits Mrs Liousas also provided misleading and dishonest responses to management in the disciplinary interview.

[2] Mrs Liousas alleged the termination of her employment by Aveo Group was unfair because the allegation regarding the inappropriate dispensing of medications was not properly investigated and the photos of her sleeping were taken without her consent. Mrs Liousas submits she was not actually sleeping at the time, and that she was lying down whilst watching the television.

[3] Mrs Liousas’ unfair dismissal application, lodged on 23 June 2016, was not made within 21 days of the date of the dismissal as required by s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

[4] Aveo Group filed a response to Mrs Liousas’ application on 5 July 2016 objecting to the application on the basis that it was out of time.

[5] Mrs Liousas attended a jurisdiction hearing before me on 15 July 2016 and gave oral evidence on her own behalf in addition to her written submission. Mr George Liousas also provided submissions and gave oral evidence on behalf of his mother Mrs Liousas.

[6] Mr Peter Frazer, Lawyer, appeared with permission for Aveo Group at the hearing on 15 July 2016. Ms Newton, Village Manager gave evidence on behalf of the Aveo Group along with Mr Wayne Merrotsy, National Human Resource Manager.

[7] This decision is about whether the Fair Work Commission (Commission) should allow Mrs Liousas a further period for lodgement of her application for an unfair dismissal remedy.

[8] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[9] Section 394(3) of the Act is as follows:

“394 Application for unfair dismissal remedy

…

(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.”

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

“[13] 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. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. 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.” [Endnotes not reproduced]

[11] There was no factual dispute that Mrs Liousas had filed her application out of time.

The evidence

[12] Mrs Liousas submits the reason for the delay in lodging her application was that she was suffering from stress and depression and a lot of anguish knowing that her husband was going to be the sole financial provider and that her reputation had been tarnished.

[13] Mrs Liousas also submits she did not know where or whom to turn to for assistance after her dismissal, however her evidence was she had sought advice from a number of legal firms and that most either declined to take her case or quoted fees she could not afford.

[14] Mrs Liousas started a petition on 28 April 2016 to challenge her dismissal and to be reinstated back to her position. In the two week period after the dismissal took effect, Mrs Liousas took the petition to residents of her former workplace and obtained 20 signatures in support of her campaign.

[15] The evidence of Mrs Liousas and Mr Liousas was that Mrs Liousas had contacted the Commission approximately one to two weeks after the dismissal took effect. Mrs Liousas says she didn’t lodge her application at that time because she was hesitant to take action. Mrs Liousas’ evidence was that she later had a change of mind and decided to lodge her application. 2

[16] In cross examination it was Mrs Liousas’ evidence that as early as preparing the petition, being within a week after her dismissal, she had understood the meaning of unfair dismissal and went as far as to use the wording unfair dismissal on her petition. Mrs Liousas says she knew this because she had sought legal advice and she was aware of the processes available to her to challenge her dismissal, which she believed to be unfair.

[17] Mrs Liousas also gave evidence that she had a conversation with a union representative between 21 and 26 April 2016 in which she mentioned she was considering taking action against Aveo Group through the Commission.

[18] Mrs Liousas’ evidence was she had been supported by the union during a number of disciplinary meetings and had chosen not to engage their support in seeking assistance for her unfair dismissal claim. Mrs Liousas said this was because she was of the opinion they didn’t do anything to assist her and she was not happy with their representation to date. 3

[19] Mrs Liousas provided a doctor’s report to support her application for unfair dismissal. In cross examination Mrs Liousas and Mr Liousas’ evidence was the report was requested from the doctor in case there was an actual hearing. The doctors report states the following:

“…She feels that she did not get enough time to respond before and after termination.

She wants appropriate help from any source possible.

I hereby recommend to receive some kind of help as far as possible.” 4

[20] Aveo Group submits Mrs Liousas cannot reasonably rely on the reason that she did not know where to turn after her dismissal as the evidence shows Mrs Liousas had obtained advice from the Commission and the Union. Further to this Mrs Liousas, although she may have had difficulty engaging legal representation for financial reasons, had also spoken to lawyers.

[21] Mrs Liousas’ application was filed 58 days after the date of her dismissal. Mrs Liousas must provide a credible reason for the delay in making the unfair dismissal application. 5

s.394(3)(a) the reason for the delay

[22] Mrs Liousas must provide a credible reason for the whole of the period that the application was delayed. 6 The Commission is required to consider the explanation of the total period of the delay, not only part of it. The delay for the purposes of s.394(3) of the Act, is the delay from the expiry of the 21 day period in s.394(2)(a) after the termination date until lodgement of the application.7

[23] In accordance with the principles summarised in paragraph [22] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case, that is the period from 17 May 2016 to 23 June 2016. However the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and whether that reason constitutes exceptional circumstances.

[24] Mrs Liousas submits that she was stressed and upset after her dismissal and this was one of the reasons that contributed to the delay in the lodging of her application. I have no doubt that Mrs Liousas was stressed and upset, after all she had been employed by the Aveo Group for nearly twelve years prior to her dismissal. It is perfectly reasonable that an employee who has been dismissed would ordinarily feel some degree of emotional distress. I am not satisfied this reason constitutes exceptional circumstances.

[25] Mrs Liousas also submits the reason for the delay in lodging her application was that she did not know where to turn to after her dismissal. Mrs Liousas had in fact obtained the union’s assistance to respond to Aveo Group during the disciplinary process. Mrs Liousas’ evidence was although she had engaged with the union prior to her dismissal, she chose not to seek the union’s assistance after the dismissal took effect, despite being aware this was available to her.

[26] Mrs Liousas gave evidence that she had also met with a lawyer in person after her dismissal and she had paid for and received advice about her unfair dismissal. 8 Mrs Liousas says she had received advice on lodging an application with Fair Work however she hesitated to do so.9

[27] Mrs Liousas’ evidence was she had phoned the Commission for advice after her dismissal took effect however she chose not to submit an application for unfair dismissal remedy at that time. 10

[28] It is evident that prior to being dismissed Mrs Liousas had turned to a variety of sources to obtain advice and support. Even though Mrs Liousas was aware that she needed to lodge her application immediately, she chose not to do so. It is evident that this was largely due to the fact that she hadn’t decided at the time what course of action it was that she wanted to pursue. I am not satisfied those reasons relied on by Mrs Liousas are exceptional circumstances warranting an extension of time for the lodging of her application. This weighs against a finding of exceptional circumstances.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[29] It is not in contention Mrs Liousas became aware of her dismissal at the time it took effect.

[30] Mrs Liousas had the full 21 days from the date of termination to lodge her application. This weighs against a finding that there are exceptional circumstances.

s.394(3)(c) any action taken by the person to dispute the dismissal

[31] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 11

[32] Mrs Liousas sought to gain back her employment by seeking support from the residents of her former workplace by obtaining signatures on a petition she had put together. Mrs Liousas also sought advice from lawyers.

[33] Mrs Liousas took no other action to dispute her dismissal. This weighs against a finding that there are exceptional circumstances.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[34] Prejudice to the employer will go against the granting of an extension of time. There were no submissions made relevant to this criterion. I consider this criterion to be neutral.

s.394(3)(e) the merits of the application

[35] When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group, 12 it said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[36] Mrs Liousas gave evidence that her dismissal was unfair as she had been terminated for sleeping whilst at work when in fact she was not asleep. She submitted that a photo had been taken of her without her consent whilst she had been watching television during her shift.

[37] Mrs Liousas’ evidence was that she had been resting with her eyes closed which would have only been for a couple of seconds but that she was not sleeping or snoring as alleged.

[38] During cross examination, Mrs Liousas initially denied that she had been lying down but later admitted that she had been lying down and resting.

[39] Aveo Group submitted that allegations of sleeping on the job were put to Mrs Liousas in a meeting on 19 April 2016 and that Mrs Liousas was given an opportunity to respond to the allegations which she denied. Aveo Group submit that Mrs Liousas continued to deny the allegations during a further meeting held on 26 April 2016, despite being shown a photograph of her lying on a couch with her eyes closed.

[40] It is Aveo Group’s submission that Mrs Liousas lied during the investigation and failed to honestly answer her employer’s reasonable questions around the allegations of her being asleep and lying down on the couch during her shift. Aveo Group submitted that the evidence given by Mrs Liousas affects her credibility.

[41] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 13 for the purpose of determining whether to grant an extension of time to the applicant to lodge an application.

[42] I have adopted the reasoning outlined above. I am not able to make a final assessment of the merits of the matter and accordingly, I find the criterion to be neutral.

s.394(3)(f) fairness as between the person and other persons in a similar position.

[43] Consideration of fairness in matters of other persons in a similar position has been considered recently in Morphett v Pearcedale Egg Farm 14 as follows:

“[29] Turning to the question of fairness as between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.”

[44] There were no submissions that there is, or has been, any persons in a similar position to Mrs Liousas. I find the criterion to be neutral.

Conclusion

[45] Having considered the matters referred and for the reasons set out above, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mrs Liousas’ application to be made. Mrs Liousas has not provided a reasonable explanation for the whole of the delay. Mrs Liousas’ application for an extension of time is refused and her unfair dismissal application is therefore dismissed.

[46] An order 15 dismissing Mrs Liousas’ application will accompany this decision.

COMMISSIONER

Appearances:

G Liousas appeared for Leticia Liousas.

P Frazer, solicitor, appeared for Aveo Group Limited.

Hearing details:

2016.

Melbourne:

July 15.

 1   [2011] FWAFB 975.

 2   Transcript of Proceedings PN148 to PN157.

 3   Transcript of Proceedings PN228 to PN241.

 4   Exhibit A3.

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

 6   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010)197 IR 403 at 408-9.

 7   Thiess Services Pty Ltd v Stephens[2014] FWCFB 2426, [37].

 8   Transcript of Proceedings PN344 to PN347.

 9   Transcript of Proceedings PN348 to PN350.

 10   Transcript of Proceedings PN148 to PN157.

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

 12   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 13   Kyvelos v Champion Socks Pty Ltd, Print T2421, [14].

 14   [2015] FWC 8885 at [29].

 15   PR585787.

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