Ms Sophie Patsialaridis v Department of Human Services

[2014] FWC 6158

[2014] FWC 6158

FAIR WORK COMMISSION

DECISION

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

Ms Sophie Patsialaridis
v
Department of Human Services
(U2014/8225)

COMMISSIONER ROE MELBOURNE, 9 SEPTEMBER 2014

Unfair dismissal - extension of time for lodging application.

[1] Ms Patsialaridis was employed by the Department of Human Services for 28 or 29 years. Her employment was terminated at the initiative of the Department on 16 June 2014. The application was made 22 days after 16 June 2014. The application was one day late.

[2] The Department decided to dismiss Ms Patsialaridis after an inquiry process. Ms Patsialaridis was on personal leave, annual leave or suspension from duty during the inquiry process. Ms Patsialaridis was advised to expect to hear about the outcome of the inquiry within about 10 days of the end of the process. The parties agreed that the expected date for advice was 16 June 2014. Having made the decision to terminate the employment the Department sought to communicate the decision to Ms Patsialaridis by telephone and by letter.

[3] Mr Rams made a phone call at 3.41pm on 16 June 2014 but it went to message bank. Mr Rams left a message advising Ms Patsialaridis that her employment had been terminated effective 16 June 2014. It is not suggested that Mr Rams made any subsequent or follow up call. Ms Patsialaridis says that she received this message when she deleted other messages on her inbox on 22 June 2014.

[4] Correspondence notifying the dismissal is dated 18 June 2014 and it is accepted that it was sent on that date. The letter advises that the dismissal is effective 16 June 2014 and refers to a telephone message having been left for Ms Patsialaridis on that day. Delivery of this correspondence was unsuccessfully attempted by Australia Post on 19 June 2014. Ms Patsialaridis received a card from Australia Post notifying of the attempted delivery on that day. The letter was eventually collected by Ms Patsialaridis on 10 July 2014.

[5] Ms Patsialaridis did not take any action to dispute the dismissal between receipt of the message notifying her of the dismissal and the making of the unfair dismissal application.

[6] There are two factual issues in dispute which I need to consider:

● What steps did the Department take to effect a dismissal on 16 June 2014?
● Did Ms Patsialaridis become aware of the termination of her employment on 16 June 2014 or on 22 June 2014?

[7] Having determined these factual issues I will then consider the other matters required by the legislation and determine if there are exceptional circumstances justifying an extension of time.

What steps did the Department take to effect a dismissal on 16 June 2014?

[8] Ms Rothwell for the Department gave evidence that it was the normal practice to implement termination of employment by making telephone contact and then following this up with a letter.

[9] Ms Rothwell gave evidence that she understood that there had been difficulties in communicating with Ms Patsialaridis during the discipline inquiry process. Her evidence in this respect was not based upon direct knowledge or experience. Some of the examples that she gave were not examples of difficulties in communication. For example, the inquiry hearing was delayed to enable Ms Patsialaridis to be represented and it was suggested that Ms Patsialaridis may have turned up late to a hearing.

[10] Ms Patsialaridis gave direct evidence that she had not been the cause of any difficulties in communication during the inquiry process. However, she did accept that she was late in responding at one point in the process and she attributed this to the fact that the deadline given in the correspondence referred to a date in December 2014 rather than December 2013. This seems to be a rather obvious error and the intended date should have been apparent to Ms Patsialaridis and if it wasn’t the onus was on her to follow the matter up.

[11] Ms Patsialaridis was on annual leave when first told about the discipline inquiry in October 2013. She gave evidence that she told Mr Rams that she did not want to be contacted by private email whilst on leave. Subsequently after the end of that leave she did contact the Department using her private email. Ms Rothwell gave evidence that she understood that the Department had been asked not to contact Ms Patsialaridis by private email. Ms Rothwell speculated that this was probably the reason why email was not used to communicate the dismissal when phone contact was unsuccessful.

[12] I am satisfied that the Department was aware that there had been a history of some difficulties in contacting Ms Patsialaridis. I am also satisfied that the Department did not communicate the termination using the private email address because of the earlier objection to this means of communication given to Mr Rams. I accept that Ms Patsialaridis thought that this restriction was no longer in place because she had been communicating with the Department using her private email but the Department cannot be criticised for its cautious approach to this matter.

[13] Given that the Department was aware that there had been a history of some difficulties in contacting Ms Patsialaridis I am not satisfied that leaving a single voice mail message on a mobile phone is sufficient to effect the termination of employment on the day that the message is left. It would have been reasonable to make some follow up calls and text messages. To be confident that the dismissal had been effected it would have been better in the circumstances to rely upon the delivery of the dismissal letter and the evidence of Australia Post’s efforts to make such delivery.

[14] I accept the submission that it may be reasonable to advise an employee of the termination outcome by telephone in circumstances where there has been an inquiry during which an employee has had notice that their employment may be in jeopardy, notice of the allegations against them and has had an opportunity to respond both verbally and in writing to the allegations and to preliminary findings. Generally speaking it is procedurally unfair to do so in the absence of such earlier steps. However, leaving a voice mail message and advising a person by telephone are not the same thing. A voice mail message is not as reliable as a registered mail item, a courier, a regular mail item or an email. In all these cases there are service and delivery standards and in some cases there is evidence of delivery. It is commonplace that there are often significant delays in the delivery of a voice mail message. It is also commonplace that there can be network problems and both hardware and software problems with hand held devices. The recipient of a voice mail message may not be aware that a message is awaiting in their in box. It is not reasonable to assume that a person will be constantly checking their voice mail in box.

[15] In all of the circumstances I am not satisfied that the Department made reasonable efforts to ensure that Ms Patsialaridis was advised of the dismissal on 16 June 2014.

Did Ms Patsialaridis become aware of the termination of her employment on 16 June 2014 or on 22 June 2014?

[16] Ms Patsialaridis says that she did not receive notification from the Department of the outcome of the internal inquiry within 10 working days of the inquiry hearing. She says that on 19 June 2014 she rang Mr Hamilton who had also been subject to the inquiry and asked him if he had been notified of the outcome. When Mr Hamilton said that he had been notified she asked Mr Hamilton why she would not have received notification. Mr Hamilton suggested it might be a telephone issue and he suggested that her voice mail box might be full. Ms Patsialaridis gave evidence that the notification from Australia Post that they had tried to deliver a letter prompted her to make the call to Mr Hamilton.

[17] A Statutory Declaration made by Mr Hamilton on 14 August 2014 confirms that he suggested that Ms Patsialaridis’ message bank may be full and that Ms Patsialaridis said that she was going to check with her service provider to try to rectify any issues with the service. 1 Mr Hamilton and Ms Patsialaridis say that in the telephone call on 19 June 2014 Ms Patsialaridis asked Mr Hamilton to provide a statutory declaration to confirm the content of the telephone call. The Statutory Declaration is dated 14 August 2014.

[18] At some time after the conversation on Thursday 19 June 2014 Ms Patsialaridis says that she contacted Apple and Vodaphone who suggested that her voice mail may be full and told her how to delete messages from the mail box. Ms Patsialaridis says that she deleted messages on Sunday 22 June 2014 and then received new incoming voice mails including Mr Rams’ voice mail of 3.41pm on Monday 16 June 2014. Ms Patsialaridis gave evidence that she had not had any previous problems with her voice mail box. Ms Patsialaridis said that she did not have a car and did not have internet at home and this was the reason why there was a delay in collecting the dismissal letter from Australia Post.

[19] There are a number of aspects of the evidence of Ms Patsialaridis which taken together I find improbable:

● I find it unusual that she asked Mr Hamilton to provide a Statutory Declaration in the phone call on 19 June 2014. It is quite unclear why she would need evidence of the fact that she hadn’t received a message from the Department when she did not know the outcome of the Department’s consideration.

● I find it strange that she asked Mr Hamilton for a Statutory Declaration about a conversation on 19 June 2014 but the Statutory Declaration was not provided until 14 August 2014. Ms Patsialaridis provided her materials in support of the extension of time application on 18 August 2014.

● If Mr Hamilton and Ms Patsialaridis thought the problem might be a full mail box I consider it strange that she did not act more quickly to deal with the problem and I question why she didn’t ask Mr Hamilton to assist her to delete messages from the mail box. 2

● Ms Patsialaridis gave evidence that she was anxiously awaiting a telephone call about the outcome of the discipline inquiry on or before 16 June 2014. I find the lack of urgency with which she approached the issue of trying to establish the outcome improbable. She did not telephone the Department, she did not take a taxi to the post office to collect the mail when she received the failed delivery slip, and it took her three days after the telephone call on 19 June 2014 to take action to clear her mail box.

● There is no suggestion that the problem was anything other than the mail box being full. The solution was to delete some messages. Ms Patsialaridis suggested that she had some difficulties with knowing how to do this properly. However, if Ms Patsialaridis was unable to delete messages properly then one suspects that the problem would have occurred before and she says that this was the first time she had had the problem.

[20] I accept that each of these matters could be explained by coincidence, technical failure, or personal circumstance. However, taking all these matters together I am not satisfied that Ms Patsialaridis first became aware of the dismissal on 22 June 2014. I consider it probable that she was aware of the dismissal at an earlier date.

[21] I cannot rely on the evidence of Ms Patsialaridis about when she became aware of the dismissal. However, there is no evidence from the Department which can establish that Ms Patsialaridis was aware of the dismissal prior to when she received the letter on 10 July 2014. There is evidence that on 19 July 2014 Ms Patsialaridis was aware that a letter had been sent. To establish whether or not Ms Patsialaridis was aware of the dismissal on 16 June 2014 I consider it appropriate to consider what Ms Patsialaridis put on her application form.

[22] Ms Patsialaridis answered the relevant questions on her application form as follows:

“What date were you notified of your dismissal?

? 16 June 2014 via message on mobile phone. NO WRITTEN notification received yet.

What date did your dismissal take effect?

? 16 June 2014

Are you making this application within 21 calendar days of your dismissal taking effect?

Yes”

[23] I am satisfied that the question mark at the beginning of the first two questions clearly indicates that the Ms Patsialaridis was uncertain about the answers to these questions.

[24] I do not regard the answer to the third question as significant. Many people find the calculation of this time period difficult. If Ms Patsialaridis was trying to disguise the fact that her application was late I consider it likely that she would have specified a later date in response to the question: “what date were you notified of your dismissal?” There was no evidence to support a conclusion that Ms Patsialaridis knew that her application was late when she answered the question: “Are you making this application within 21 calendar days of your dismissal taking effect?”

[25] I consider that there are two likely explanations for the “?” which accompanies the answer to the question: “What date were you notified of your dismissal?” It is possible that Ms Patsialaridis is simply communicating that she cannot remember the date. It is possible that Ms Patsialaridis is reflecting the conflict between the advice of the employer as to when the dismissal took place and the fact that she did not receive that advice until after 16 June 2014. I consider it unlikely that Ms Patsialaridis was uncertain about when the employer said that the dismissal took place given that it was clear in the letter and in the phone message and the detailed evidence Ms Patsialaridis has given in proceedings. I consider it probable that when Ms Patsialaridis completed the application form she was referring to the fact that she did not receive the advice until after 16 June 2014.

[26] I have earlier found that the Department did not make reasonable efforts to ensure that Ms Patsialaridis was advised of the dismissal on 16 June 2014. The voice mail message was left at 3.41pm on that day. I am not satisfied that Ms Patsialaridis received the message on that day.

[27] I am satisfied that the earliest date Ms Patsialaridis received advice of her dismissal was 17 June 2014. Ms Patsialaridis made her application within 21 days after that date.

Are there exceptional circumstances justifying and extension of time?

[28] I must determine the question in accordance with Section 394(2) of the Fair Work Act 2009 (the Act) which provides as follows:

“(2) [Standard time limit] The application must be made:

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

(b) within such further period as FWA allows under subsection (3).”

[29] Subsection 394(3) provides:

“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[30] If the Application was not made within 21 days of the dismissal taking effect I must consider whether or not there are exceptional circumstances taking into account the six matters listed.

[31] There is no evidence that Ms Patsialaridis took any other action to dispute her dismissal other than by making the application to the Fair Work Commission.

[32] There is no prejudice to the Respondent and the Department does not argue that there is.

[33] Ms Patsialaridis suggested that the reason for delay was her general confusion and distress about the termination of her employment. I am not satisfied that there was any reason for the delay, other than the issue of when Ms Patsialaridis first became aware of the dismissal, which could contribute to a finding of exceptional circumstance.

[34] The reasons for the dismissal are contested. If the dismissal had taken place by voice mail message in the absence of a detailed inquiry process during which the employee was on notice that the outcome could be termination of her employment then this would have been a significant merits factor which would stand in favour of a finding of exceptional circumstances. In this case there was a detailed inquiry process and Ms Patsialaridis had an opportunity to respond. The employer says that it has strong and valid reasons whilst the employee says that she can and will contest the validity matters alleged against her.

[35] Fairness as between the person and other persons in a similar position is not of particular relevance in this case.

[36] These factors are neutral factors. Whether or not there are exceptional circumstances depends upon the issue “whether the person first became aware of the dismissal after it had taken effect”.

[37] For the reasons discussed earlier I am satisfied that Ms Patsialaridis first became aware of the dismissal on 17 June 2014 at the earliest.

[38] I am satisfied that it is the legislative intent that an employee has 21 days within which to make the application.

[39] There may be circumstances where an employer makes reasonable efforts to inform an employee about their dismissal but the employee is deliberately seeking to avoid contact. This may occur in some abandonment of employment situations. In such a situation the absence of 21 days between the date when an employee becomes aware of the dismissal and the date when the application must be made may not constitute an exceptional circumstance justifying an extension of time.

[40] In the circumstances of this case the employer did not make reasonable efforts to advise the employee on the day specified and the employee did not have 21 days within which to make the application. I am satisfied that this does constitute an exceptional circumstance which, given that the other factors are neutral, justifies an extension of time.

[41] During the proceedings I raised the possibility that in fact the application was within time because the dismissal occurred after 16 June 2014. The parties did not choose to make submissions about this matter. Although it is not necessary to decide the matter it does seem unlikely that a dismissal can take effect when the employee is not aware of the dismissal or where it was not reasonable for the employee to be aware of the dismissal. There are two full bench decisions under earlier legislation that suggest this may be the correct approach. It should be noted that the criteria for exceptional circumstances for an extension of time, “whether the person first became aware of the dismissal after it had taken effect”, is not found in the earlier legislation and this may affect the applicability of these earlier full bench decisions.

[42] In Burns v Aboriginal Legal Service of Western Australia the Full Bench observed as follows:

“[24] As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant's home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.” 3

[43] In Makenja v Baptist Community Services the Full Bench observed:

“18. There is an additional matter which was not raised in argument. Section 643(14) requires an application to be lodged within 21 days of “the day on which the termination took effect.” Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case. In this case it does not seem to be in contest that the appellant was not aware of the letter of termination until 22 August 2006. The application for relief was filed within 21 days of that date. In cases in which abandonment of employment is alleged the time at which the termination took effect may only be ascertainable after resolving factual and legal issues. It will be rare for such issues to be resolved fairly without a hearing. But if on one view of the material before the Commission the application was within time, there is a strong case for allowing the application under s.643(14).” 4

[44] I grant the extension of time and the merits of the matter will now proceed to be determined.

COMMISSIONER

Appearances:

Ms Patsialaridis represented herself.

Mr Clarke appeared for the Respondent.

Hearing details:

2014

Melbourne

August 29

 1   Mr Hamilton was not available for cross examination but the Department did not suggest that his evidence should be disregarded.

 2   Ms Patsialaridis was not asked why she didn’t ask Mr Hamilton to assist her to delete the message and I accept that there might be a reasonable explanation.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

 4   Makenja v Baptist Community Services, Justice Giudice, Vice President Lawler and Commissioner Deegan, 19 January 2007, PR975837 at para 18.

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