Ms Garyfalia (Litsa) Dernikos v Thendro Pty Ltd T/A Off Ya Tree

[2013] FWC 10023

[2013] FWC 10023

FAIR WORK COMMISSION

DECISION

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

Ms Garyfalia (Litsa) Dernikos
v
Thendro Pty Ltd T/A Off Ya Tree
(U2013/14410)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 20 DECEMBER 2013

Application for relief from unfair dismissal.

[1] This is an edited version of a decision delivered in transcript on 16 December 2013. Ms Garyfalia Dernikos commenced employment with Thendro Pty Ltd in or about August of 2011. That employment came to an end on 19 July 2013. The reasons for dismissal are set out in a letter of termination addressed to Ms Dernikos dated 19 July 2013. Without reciting those reasons they principally concern a failure by Ms Dernikos to notify her employer of absences, together with a refusal to carry out the duties, or at least some of the duties associated with Ms Dernikos's employment.

[2] On 10 October 2013 Ms Dernikos lodged with the Fair Work Commission (Commission) an application for an unfair dismissal remedy. Section 394 of the Fair Work Act 2009 (Act) provides that applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. In this case the dismissal took effect on 19 July 2013, as is evident from the letter of termination, which indicated that the employer was summarily dismissing Ms Dernikos. A valid application for an unfair dismissal remedy therefore needed to be made by 9 August 2013. Ms Dernikos's application was made more than two months outside the time prescribed.

[3] Section 394(3) provides the Commission with a discretion to extend the period of time within which an unfair dismissal remedy application might be lodged if satisfied that there are exceptional circumstances. As I explained to the parties at the commencement of this hearing on Friday, in determining whether exceptional circumstances exist I needed to take into account a number of matters. Those matters are:

● the reason for the delay;

● whether Ms Dernikos was aware of the dismissal after the date on which it took effect;

● any action taken by Ms Dernikos to dispute her dismissal;

● prejudice to the employer, including prejudice that might be caused by the delay;

● the merits of the application for an unfair dismissal remedy; and

● fairness as between Ms Dernikos and other persons in a similar position.

[4] I will deal with each of those considerations in turn. Ms Dernikos says that the reason for the delay or the reasons for the delay are associated with the death of her father, which occurred on 25 May 2013. She also says that she suffers from depression and anxiety. And she says that she did not know how to approach an application, was computer illiterate, and did not know where to start looking for help. I have before me two medical certificates, one from Dr John Buongiorno and the other from the Burnley Street Medical Centre, each of which is dated 13 December 2013.

[5] Collectively those documents certify that Ms Dernikos has been suffering from depression for a number of years, dating back to 2003; that the depression has been an ongoing issue; that she had undertaken counselling in the past; and that she was last prescribed medication for her depression in July of 2008. I am satisfied that Ms Dernikos suffers from depression and anxiety and that she has done so for several years. However, there is no material before me which would suggest that the depression and anxiety from which Ms Dernikos suffered affected her in a way that would have prevented her from lodging an unfair dismissal remedy application within the prescribed time, or at least on some date earlier than 10 October 2013.

[6] Equally, whilst Ms Dernikos was no doubt greatly affected by the death of her father, that event occurred some two months prior to the dismissal and there is no objective evidence that the sad event contributed to the delay or prevented Ms Dernikos from bringing the application sooner than she did. As to the explanation about computer illiteracy and knowledge of how to approach the making of the application and where to seek assistance, I note firstly that Ms Dernikos did in fact consult Slater and Gordon the day before her dismissal, that she consulted Fitzroy Legal Service on or about 27 September 2013, that she had been booked in for a consultation with Victoria Legal Aid Service on 1 October 2013 but was unable to attend because of illness, and instead attended on 9 October 2013.

[7] I also note that Ms Dernikos expressed a view on the employer's Facebook page on 11 September 2013 advising that she intended to take legal action. It seems to me that Ms Dernikos was seeking assistance, knew that she could and should consult lawyers. It also seems to me that she was not so computer illiterate as to prevent her from lodging a protest on the employer’s Facebook page. I am satisfied that Ms Dernikos was sufficiently aware that she could pursue an unfair dismissal remedy application and that the explanation that Ms Dernikos has provided in that regard does not sufficiently or satisfactorily explain the long period of delay.

[8] In all of the circumstances I am satisfied that there is no satisfactory explanation for the delay. This is a factor that weighs against the granting of an extension of time. As to the date on which Ms Dernikos became aware of the dismissal, it is common ground that Ms Dernikos became aware of the dismissal on 19 July 2013 and was notified on that day. Consequently I am satisfied that Ms Dernikos became aware of the dismissal of the day it took effect, so this factor is also one that weighs against the granting of an extension of time.

[9] As to action taken by Ms Dernikos to dispute her dismissal, as I have already noted, Ms Dernikos sought the assistance of Slater and Gordon, Fitzroy Legal Service, and Victoria Legal Aid. In addition Ms Dernikos made it clear on the employer's Facebook page that she was contemplating some form of court action. In the circumstances I am satisfied that Ms Dernikos took at least some steps to dispute her dismissal, and this is a factor that weighs in favour of Ms Dernikos’ application for an extension of time.

[10] As to prejudice to the employer, the employer says that the delay in bringing the claim will mean that it will suffer prejudice because its witnesses will have some difficulty recalling specific details of incidents that occurred at the time of Ms Dernikos's dismissal. During proceedings before me the parties who gave evidence (and who would also likely give evidence at a hearing) seemed reasonably able to recall events. The period of delay was not so great that it can be seriously suggested that potential witnesses will have clouded memories, and so I am not satisfied that there is any real prejudice that the employer will suffer if the application is permitted to proceed. In those circumstances the absence of prejudice favours Ms Dernikos.

[11] As to the merits, in the brief time that I have had to consider the merits of the application, it seems to me that the employer will face some difficulty in establishing that it had a valid reason for Ms Dernikos's dismissal. Furthermore, the procedure that the employer adopted in affecting the dismissal leaves a lot to be desired. I am satisfied that Ms Dernikos has an arguable case that her dismissal was harsh, unjust or unreasonable, but I put it no more highly than that. I would also note that Ms Dernikos's subsequent crude comments on the employer's Facebook page does little to assist her case and would be a factor that would certainly weigh against any reinstatement in the circumstances if this matter were to proceed.

[12] As to fairness between Ms Dernikos and others in a similar position, I consider the question to be essentially neutral in this case.

[13] Statutory time limitations for the exercise of a person's right are in place principally to bring about certainty as between potential litigants. Time frames seek to balance person's right to bring an action against a potential respondent's right to know for certain that questions about actions that they have taken will be agitated within a particular period, otherwise the right of action would be lost.

[14] It is for this reason that the parliament has determined that in cases of unfair dismissal applications, those applications should be brought within 21 days after the date the dismissal took effect and that extensions of time for bringing such claims will only be given if the Commission is satisfied that there are exceptional circumstances. By exceptional circumstances, I mean matters that are out of the ordinary course, that are unusual, special or uncommon. The circumstances do not have to be unique, they do not have to be unprecedented and they do not have to be very rare.

[15] Whilst Ms Dernikos has been able to persuade me that she has an arguable case, I am not satisfied that she has established that there is a reasonable explanation for the delay. Here I am not concerned with an application that is only a few days late or even a few weeks outside of the prescribed time; the application is two months' late. In the context of a 21-day time period, that is a significant period of time. Taking into account all of the matters that I have discussed earlier, I am not satisfied that there are exceptional circumstances in this case to warrant the grant of an extension of time. The application for an extension of time is refused and substantive application is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Dernikos on behalf of herself

T.Hill and S.Forward for Thendro Pty Ltd

Hearing details:

2013.

Melbourne.

December 13, 16

Printed by authority of the Commonwealth Government Printer

<Price code C, PR545977>