Saverina De Vuono v Virgin Australia

[2020] FWC 5651

[2020] FWC 5651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Saverina De Vuono
v
Virgin Australia
(U2020/13022)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 OCTOBER 2020

Application for unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed.

[1] On 30 September 2020, Mrs Saverina De Vuono made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mrs De Vuono’s unfair dismissal application is Virgin Australia.

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Mrs De Vuono recorded that her dismissal was notified and effected on 27 August 2020. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). Having been made on 30 September 2020, Mrs De Vuono’s unfair dismissal application was therefore filed 13 days late.

[3] I therefore conducted a Determinative Conference on 20 October 2020 to consider Mrs De Vuono’s application for an extension of time for the filing of the unfair dismissal application. Mrs De Vuono appeared and gave evidence while the Respondent was represented by its Senior Legal Counsel – Group Workplace Relations, Mr Patrick Lawler.

Legislation

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[5] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

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

[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

Reason for the delay

[7] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3

[8] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 4

[9] In her Form F2, Mrs De Vuono submits that the reason for the delay was representative error, claiming she received no advice from her union (the Transport Workers’ Union – TWU), and that her union representative (TWU Organiser Mr Dissio Markos) did not return her telephone calls or emails. Mrs De Vuono also outlined that she was unaware that she was required to lodge her claim within 21 days of her dismissal taking effect.

[10] To these reasons, Mrs De Vuono added in her Outline of Argument and oral testimony that she was stressed and in shock as a result of her termination and the effects of COVID-19.

Allegation of representative error

[11] Mrs De Vuono tendered an exchange of text messages between herself and Mr Markos that commenced on 26 August 2020 at 10.09am and ceased at 3.19pm on 11 September 2020, 5 which was 15 days after her dismissal took effect.

[12] The exchange started with Mrs De Vuono asking Mr Markos to attend what turned out to be the meeting on 27 August 2020, at which she was notified of her dismissal. Following the meeting the communications between Mrs De Vuono and Mr Markos were directed at the claim she wanted to make for staff travel entitlements following her dismissal and outplacement support. In particular, Mrs De Vuono said that she said to Mr Markos that she considered it unfair that Virgin Australia had not explored the option of a voluntary redundancy with her, as it had with other employees who had been on light duties.

[13] Mrs De Vuono’s queries relating to voluntary redundancy were also evidenced in email exchanges on 27 August 2020. The chain of emails produced before me 6 was as follows:

a) At 11.05am, Mrs De Vuono sent an email, which asked:

“Just wanted to know where does my staff travel fit in with the medical redundant?”

b) The following response was sent from Mr Colin Malloy of Virgin Australia at 11.49am:

“As this termination based on medical grounds, I don’t believe the redundancy benefits will apply.

I will ask Ioanna who is included in this email to follow up and confirm if this is correct.”

c) Ms Ioanna Papantoniou of Virgin Australia supplemented Mr Malloy’s response at 12.17pm, as follows:

“As discussed during the outcome meeting this morning your employment with Virgin Australia has been terminated due to being unable to fulfil the inherent requirements of your role, on medical grounds and as such is not classed as a redundancy.”

d) Mrs De Vuono replied to Mr Malloy and Ms Papantoniou at 2.03pm, copying in Mr Markos:

“Good afternoon as per conversation with Colin I asked about staff travel and was told I wasn’t entitled due to my redundancy. I feel it’s unfair and I feel discriminated as I had no choice in being injured and as it happened at work. Not only I lose my job due to injury but I also live with the pain and suffering of my shoulder for the rest of my life. Now I was offered the VR I could have applied for and offers staff travel after almost 4 years in working with virgin not only I was injured I lose my entitlement’s that everyone else would get bit unfair.

Hope you reconsider the situation.”

[14] On Friday 28 August 2020, Mrs De Vuono sent a text message to Mr Markos enquiring as to whether he had received her email. Mr Markos replied in the affirmative. On Monday 31 August 2020, Mrs De Vuono followed up with Mr Markos via text, asking “Are you going to do anything about trying to get staff travel?”. Mr Markos replied shortly after stating he would make a call and let Mrs De Vuono know the outcome. Mrs De Vuono’s follow up text messages on 1 and 2 September 2020 did not receive a response from Mr Markos until 11 September 2020, when he left her a voicemail message asking her to contact him. Mrs De Vuono returned the call and had to leave a message, which she followed up with a text message at 3.19pm that day.

[15] Mrs De Vuono’s last contact or attempt at contact with Mr Markos was her text message to him at 3.19pm on 11 September 2020. Her last contact with the TWU was on that day too. Mrs De Vuono said she contacted “TWU Head Office” to let them know what had happened and because of her dissatisfaction of the inaction of Mr Markos, she directed the TWU to cancel her union membership.

[16] Mrs De Vuono’s evidence before me was that she had asked Mr Markos to follow up the question of a voluntary redundancy only. This is consistent with the email correspondence and text message conversations I have outlined above. It would seem that Mrs de Vuono was not, at that stage, challenging her termination per se but rather, she was disputing how her termination should have been characterised by Virgin Australia. Even if the lack of curiosity from the TWU as to why Mrs De Vuono cancelled her membership on 11 September 2020 is somewhat surprising, the cancellation makes the fact that no further action was taken by the TWU after that day explainable. Certainly it is difficult for Mrs De Vuono to assert that the TWU was her representative after 11 September 2020.

[17] I do not consider the circumstances involving the TWU within the 21-day period prescribed in s.394(2)(a) for the making of an unfair dismissal application by Mrs De Vuono provide a credible reason for the 13-day period of delay from 18 August 2020 to 30 September 2020. While I accept that Mrs De Vuono was frustrated by the lack of contact and follow up from Mr Markos and the TWU, I am not persuaded that this is a case where the delay in making the unfair dismissal application can be attributed to representative error. It does not appear that Mrs De Vuono and Mr Markos discussed her making an unfair dismissal application and nor was there evidence to suggest Mrs De Vuono instructed Mr Markos or the TWU to do so on her behalf or that she was relying on the TWU doing so. In any event, having terminated her TWU membership on 11 September 2020, Mrs De Vuono still had a further six days within which to make her unfair dismissal application to come within the 21-day time limit.

[18] The circumstances in this case do not persuade me that there as anything related to the COVID-19 pandemic that provides an acceptable or reasonable explanation for the delay and while Mrs De Vuono submits she was shocked and stressed due to her dismissal, this is not of itself unusual. Additionally, there was no medical evidence before me suggesting that shock and stress suffered by Mrs De Vuono was to such an extent that they rendered her incapable of making application in a timely manner.

[19] Mrs De Vuono gave evidence that her motivation to challenge her dismissal was fuelled by her discovery that other Virgin Australia employees who had been on light duties were being offered voluntary redundancies and the encouragement of friends, who urged her to do something about it. Mrs De Vuono also says she made contact with the Commission on or about Monday 28 September 2020 and upon doing so, learned for the first time that there was a 21-day time limit to make an unfair dismissal application. While Mrs De Vuono may have been unaware of this fact before making contact with the Commission, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed. 7 Mrs De Vuono’s application was of course then filed two days later, on 30 September 2020.

[20] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances and I do not consider that Mrs De Vuono’s explanations outlined above, individually or collectively, provide an acceptable or reasonable explanation for the delay. The absence of an acceptable or reasonable explanation weighs against a conclusion that there are exceptional circumstances.

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

[21] I am satisfied that Mrs De Vuono was aware she had been dismissed effective 27 August 2020 and had the full period of 21 days to lodge her application. This is therefore a neutral consideration.

Action taken to dispute the dismissal

[22] In making her submissions regarding this factor, Mrs De Vuono relies upon the chain of email correspondence referred to above at [12]. She also says she expressed the opinion to her line manager, when he contacted her to enquire as to her welfare after she had been dismissed, that she felt the way in which her employment had come to an end was unfair.

[23] However, as indicated earlier, I consider that Mrs de Vuono, when corresponding via email on 27 August 2020, was not challenging her termination per se but was instead disputing how her termination should have been characterised by Virgin Australia. I do not consider this to constitute action to dispute the dismissal and therefore this circumstance does not weigh in favour of an extension of time.

Prejudice to the employer

[24] I cannot identify any prejudice that would accrue to Virgin Australia if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of granting an extension of time. It is a neutral factor. Some decisions of the Commission take a different view and have held that the absence of prejudice weighs in favour of an extension. Even if I was to adopt this approach, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[25] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

[26] Mrs De Vuono submits that her dismissal was unfair for the following reasons:

1) She was pressured to have conference meeting within 24 hours, with insufficient time to seek advice;

2) Her original surgeon, to whom she was referred by Virgin Australia’s General Practitioner, was of the view that her original injury had yet to heal and requires further surgery; and

3) Virgin Australia had elected to have regard to the opinion of a different doctor who has never examined her in person.

[27] Mrs De Vuono submitted two independent medical examination (IME) reports. Mr Gareth Laws, Consultant Orthopaedic Surgeon, stated in his report dated 31 July 2019 that Mrs De Vuono did not at that time have the capability to engage in work at the same level as immediately before her injury and observed:

“Ms De Vuono is now back to normal hours. She is doing lighter duties and hopes that these can continue to improve with her strengthening program. She should not at this stage be lifting any significant heavy weights and definitely would not be fit to return to work into the hold. As noted she does enjoy and is capable of doing the tow support role…The work of pit crew is extremely heavy work, lifting repetitively heavy suitcases. Similarly there are awkward positions in the hold. I think it has to be appreciated that despite the best efforts of Ms De Vuono and the surgeon that she may not get back to a position where she could return to those preinjury duties. Consideration of moving to a permanent lighter job such as tow support crew might be appropriate.” 8

[28] Dr Phil Allen, Consultant Orthopaedic Surgeon, states in his report dated 21 May 2020:

“Owing to the condition in the left shoulder, I do not believe that Ms De Vuono has the constitutional capacity to continue work as a baggage handler. She would be better suited to a more sedentary form of employment. I do not think she would ever return to that level of employment that she previously had…I believe that she does not have the capacity for the heavy manual work previously required of her and would be more suited to light physical work or sedentary work. This should be considered for the long term.” 9

[29] Mrs De Vuono also submitted a Certificate of Capacity completed by her General Practitioner, Dr Ana Hernandez, on 16 September 2020. Dr Hernandez certified Mrs De Vuono as having capacity for suitable employment, noting that while she could not reach above her shoulder, she could lift up to 10kg and use her injured arm and hand with modifications.

[30] Mrs De Vuono has also claimed that other Virgin Australia employees who were on light duties were offered voluntary redundancy, but she was not.

[31] Virgin Australia submits that, having regard to Mrs De Vuono’s termination letter and the IME reports filed by her:

•  She had been unfit for work since 1 August 2018;

•  She was unable to carry out the inherent requirements of her role; and

•  Her employment was terminated on the basis that she was unable to perform her role.

[32] The merits of Mrs de Vuono’s application turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of disputed fact. Based on the limited material before me, I am not able to make any firm assessment of the merits. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration.

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

[33] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. As neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter, I consider this to be a neutral consideration.

Conclusion

[34] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[35] Having regard to and weighed all the matters I am required to take into account under s.394(3), and all of the matters raised by Mrs De Vuono, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mrs De Vuono’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mrs Saverina De Vuono for herself.
Mr P Lawler for Virgin Australia.

Hearing details:

2020.
Melbourne (by telephone)
20 August.

Printed by authority of the Commonwealth Government Printer

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 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 5   Exhibit A8.

 6   Exhibit R1.

 7   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 8   Exhibit A7.

 9   Exhibit A6.