Vicky Kallinteridis v Releaf Group Limited St Kilda Victoria
[2023] FWC 2495
•28 SEPTEMBER 2023
| [2023] FWC 2495 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vicky Kallinteridis
v
Releaf Group Limited St Kilda Victoria
(U2023/7957)
| COMMISSIONER YILMAZ | MELBOURNE, 28 SEPTEMBER 2023 |
Application for an unfair dismissal remedy
Application for an unfair dismissal remedy – application lodged out of time – application dismissed.
This decision concerns an application by Ms Vicky Kallinteridis (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act) in relation to her employment with Releaf Group Limited St Kilda Victoria (the Respondent).
Ms Kallinteridis was employed in reception at a medical clinic call centre commencing on 14 July 2022 and dismissed on 3 April 2023. The unfair dismissal was lodged on 23 August 2023.
Releaf Group Limited St Kilda Victoria (Releaf) submit that the application was lodged outside the 21-day statutory time frame required by the Act.
A hearing was scheduled for 22 September 2023 to hear the extension of time application. Both parties were self-represented.
The submissions
Section 394(2)(a) and (b) 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). Ms Kallinteridis’ application was lodged 121 days late. She acknowledges that her application is late but that she has good reasons, her reasons are based on her mental health to justify an extension of time.[1] Releaf submit that none of the evidence or submissions support an extension of time, and it contends that it is further prejudiced by the time delay as the two key managers involved in Ms Kallinteridis’s performance management had resigned from the workplace months ago.[2]
Submissions were short and all medical evidence tendered in support of an extension do not relate to the period immediately after the dismissal, instead the first medical report is dated 17 August 2023, 136 days after dismissal, followed by 6 and 7 September 2023.
The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. 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.[3] 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.[4]
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; 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.
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
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.[5]
The period of the delay is from midnight of the 21st day until the date of the application. In this matter the delay is a period of 121 days.
Ms Kallinteridis submits that the reason for her delay is she went overseas as she ‘had debilitating anxiety after [her] dismissal.’[6] She submits that her overseas trip was booked two days after her dismissal and paid for by her parents and included 16 nights in Thailand.[7] Ms Kallinteridis also states that she experienced a severe decline in her mental health after her dismissal where she could not function and perform her daily tasks due to her debilitating health symptoms.[8] During proceedings Ms Kallinteridis confirmed that her holiday was a period of 16 nights leaving in late April and returning on Mother’s Day. This means that the holiday period was from 28 April to 14 May 2023. In support of her submissions concerning her mental health, she tendered in evidence the following medical records:
Consultation record of 17 August 2023 by an Epworth Clinic psychiatrist indicating that the symptoms are anxiety and PTSD and discusses Ms Kallinteridis’s report of alleged workplace bullying and purported advice from her treating medical practitioners to file a WorkCover, Unfair Dismissal claim or NDIS claim.
A brief letter dated 6 September 2023 from a general practitioner in a health clinic in Port Melbourne advising that Ms Kallinteridis has been a patient for the “past few years”, and states that she has been suffering from anxiety and depression and acute PTSD and unable to work for the last 3 months.
A letter from the treating general practitioner based in Prahran dated 7 September 2023 stating that she has been treated for psychiatric assessment with medication over the years to stabilise her symptoms of chronic anxiety and depression. The letter also details allegations made by the patient about her employment with Releaf.
Releaf submit that despite the various documents tendered, including submissions from Ms Kallinteridis, that they do not relate directly to the issue at hand, namely why the Commission should grant a substantially longer period for the application than the 21-day limit. It further submits that the medical certificates referred to above do not address the issue of extension of time. Specifically, it submits that while the medical certificates attest to Ms Kallinteridis’s “state of mind, not one doctor has specifically referred to why her condition would not allow her to make a simple application under section 393(2) of the Act within the time period.”[9] Further from Ms Kallinteridis’s material it is unclear how she could make the application on 23 August 2023 but not earlier,[10] and on this basis concludes that she is either dishonest or has little regard for the operation of the requirement under the Fair Work Act 2009.[11]
Releaf submit that none of the evidence or submissions from Ms Kallinteridis substantiates reasons for the delay. No evidence was tendered when the overseas trip took place, whether the travel imposed on the 21-day limit nor any evidence that that Ms Kallinteridis herself travelled overseas as alleged.
Ms Kallinteridis provides no explanation for the delay in filing the application other than her mental health deteriorated following the dismissal requiring her to take a holiday and that she was in no state to deal with an unfair dismissal application. It was submitted that her condition was so debilitating that she had to arrange a holiday and on her return her psychologist allegedly advised her that she was in no state to deal with an unfair dismissal application[12] and further as she spent her money overseas her priority was to register with Centrelink with the assistance of her brother.[13] No medical evidence was tendered to support her argument that she was in no state to file an application either before her departure, while on holiday or on her return to Australia. While the medical evidence does support a medical condition subject to treatment over many years, there is no medical evidence to support the submission that Ms Kallinteridis was incapable of filing her application on time, nor justify the delay of 121 days. I also observe that while Ms Kallinteridis submits that she was in no state to function on her daily tasks, she did manage to organise her travel plans, travel on her own, enjoy her holiday and return on her own on 14 May 2023.[14] While the reason for the delay is not in itself required to be an exceptional circumstance, it is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[15]
Having considered the submissions and evidence I do accept that while Ms Kallinteridis has received support around a mental health condition for a number of years which appears to have been managed well with medication as it has not impacted her ability to obtain employment or to perform her job. Ms Kallinteridis took offence that her performance was criticised and submits that her medical condition has not had any bearing on her capacity to perform her job to a professional level over many years. Secondly, I do find that while Ms Kallinteridis contends that she had suffered a debilitating mental health condition that resulted in her inability to perform her daily tasks following the dismissal, and even though a medical certificate states that she has been unable to work for three months (July to September 2023), this medical condition did not prevent her from arranging her travel, travelling on her own to a foreign country but not complete an uncomplicated unfair dismissal application within 21 days. I do find the medical certificate of 6 September 2023 unclear as to why Ms Kallinteridis’ mental state only directly impacted on her ability to work for the period July to September but not to any other period following her dismissal. I do accept that she had suffered shock and disappointment at having been dismissed, but there is no evidence of any debilitating condition that justifies an extension of 142 days (121 days late). Thirdly on the matter of the medical evidence tendered by Ms Kallinteridis, all three documents relate to periods well after the dismissal, there is no evidence concerning the state of Ms Kallinteridis that prevented her from filing an application at the time of her dismissal or at any time. Statements made by an Applicant of debilitation requires more to demonstrate exceptional circumstances to support the extension of time. Fourthly, prioritising a holiday, especially when arranged post dismissal by Ms Kallinteridis cannot in all reasonableness be considered an exceptional circumstance to weigh in favour of an extension. Clearly the facts of the case will tell whether the reason(s) for delay are exceptional, and in this matter, I do not consider the facts to sway in favour of the application.
Whether the person first became aware of the dismissal after it had taken effect
Ms Kallinteridis was dismissed in a face to face meeting on 3 April 2023. There was no confusion or lack of awareness of the dismissal, therefore she had the full benefit of the 21 days to file her application. In these circumstances this consideration does not weigh in Ms Kallinteridis’s favour.
Action taken to dispute the dismissal
Ms Kallinteridis submits that she challenged the reasons for her dismissal in the meeting on 3 April 2023. In particular she states that in response to the claim, that she could not work in a team and did not permit staff into her office, she responded that only her team leader and a specific coworker were not permitted in her office. This was due to the alleged bullying towards her from them. She submits that in relation to an expectation that she would have to rejoin the team in the call centre, she objected on the basis that her being in her own office created a “work and emotional boundary” against harassment and bullying. She submits that she informed her employer that she intended to take action against the “injustice.”[16]
Releaf submit that no action was taken to challenge the dismissal other than comments that may have taken place on the day of dismissal and this application.[17]
While Ms Kallinteridis may have challenged the decision at the time of the dismissal, no other effort was made to challenge the dismissal and importantly put Releaf on notice that an unfair dismissal application was to be made. On this basis, there is no valid reason Releaf would have expected a claim almost five months after the dismissal. This consideration does not weigh in Ms Kallinteridis’s favour.
Prejudice to the employer
Ms Kallinteridis states that the employer has not suffered any prejudice by the delay in her application.
Releaf submit that as a small start-up company it has been and will be prejudiced by an extension of time; just to respond to this application, it submits that with the effluxion of time it can no longer rely on the direct relevant evidence of Ms Kallinteridis’s immediate supervisor and another manager who are no longer working at Releaf.
While the relevant Releaf managers are no longer employed and their evidence directly relates to merit evidence, I accept there is an inconvenience in defending itself against the application. Had Ms Kallinteridis filed her application within the 21 days, Releaf would have obtained all relevant information from the managers prior to their resignation. In this instance this consideration does not weigh in Ms Kallinteridis’s favour.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. Ms Kallinteridis contends that the dismissal was unfair because she was given no warnings prior to her dismissal.[18] She further states that she was bullied at work and took a period of stress leave because the bullying exacerbated her post traumatic stress disorder, anxiety and depression.[19] She also states that she was sexually harassed by a security officer.[20] Her grievance also relates to the fact that she was moved from the call centre in response to her allegations of bullying and harassment, but the expectation that she would have to rejoin the call centre after her employer concluded that the Team Leader and co-worker did not bully her, she describes as showing no care for her.[21]
Ms Kallinteridis also tendered in evidence medical certificates for her absence from employment prior to her dismissal. These certificates make no reference to the reasons for the absence, but simply state that Ms Kallinteridis is unfit for work or study and is subject to medical treatment. The certificates include the following dates:
GP in Albert Park – unfit for the period 14 March 2023.
Medical clinic in Port Melbourne – unfit for the period 15 March 2023.
Medical clinic in Port Melbourne – unfit for the period 16 – 17 March 2023.
Medical clinic in Port Melbourne – unfit for the period 20 March 2023.
GP in Albert Park – unfit for the period 21 – 23 March 2023.
Medical clinic in Port Melbourne – unfit for the period 22 - 24 March 2023.
Medical clinic in Port Melbourne – unfit for the period 27 – 31 March 2023 back dated from 28 March 2023.
Ms Kallinteridis denies receiving any warnings and states that in relation to the meeting on her last day that her manager simply approached her stating it was “just a catch up to see how you’re going”.[22] She further disputes that her allegations of bullying were just accusations, she states that due to the conduct towards her she had to take absence on stress leave. The above medical certificates support the absences from employment but there is no evidence of stress leave. She also provides further details regarding the conduct displayed by the security guard which she describes as sexual harassment and contends that the conduct was simply not just “looking at her”.[23]
Ms Kallinterdis tendered in evidence a WorkCover claim lodged on Releaf on 15 September 2023. It is not apparent how this claim assists Ms Kallinteridis in her extension of time. The claim is simply a claim, and was lodged well after the dismissal, nor is it any credible statement concerning Ms Kallinteridis’s incapacity to lodge her application until 23 August 2023.
Releaf submit that Ms Kallinteridis was dismissed because she did not ‘undertake her work duties effectively despite repeated warnings.’[24] In addition it states that Ms Kallinteridis made numerous accusations against staff without evidence, it concluded that she was unsuitable for the work she was undertaking as she was not able to work in a team environment, and she was absent for extended periods making it difficult to delegate work to her.[25] Releaf dispute Ms Kallinteridis’ claims that she did not receive warnings about her poor performance, in fact it says that when senior staff attempted to direct her to perform her job or referred to corrective action, she complained of bullying which on investigation was found to be unfounded. It further states that the allegation of sexual harassment against a guard was unfounded as all guards were externally contracted and regularly rotated.[26] It found that, had a guard “looked at her” they were simply doing their job and this did not constitute sexual harassment.[27] It contends that this application of unfair dismissal is not any more significant than any other matter that has been or is before the Commission, therefore this consideration should not weigh in her favour.
On merit there are competing contentions, there is no evidence of a formal complaint of bullying or sexual harassment, nor evidence of stress. It is evident that the matter will turn on the facts that cannot be resolved on the limited material tendered and without the matter proceeding to hearing should there be an extension of time. Based on the limited materials presented, I cannot find that the merits weigh in favour of an application for an extension, although as the facts are disputed, at best, I do consider this a neutral consideration in my assessment of the extension of time application.
Fairness as between the person and other persons in a similar position
Ms Kallinteridis did not address this consideration and Releaf submits that in terms of fairness one would expect that an aggrieved person would promptly make an application, unlike Ms Kallinteridis that decided that a holiday was preferred. It further submits that to grant an extension of time in such circumstances undermines the importance of the time limit and sends a message to future applicant’s that taking a holiday is justification to ignore the time limit.[28]
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter, although I note Releaf’s submissions regarding general principles of fairness. I therefore consider this to be a neutral consideration.
Conclusion
Having considered the submissions and material submitted by the parties, I have taken them into account in my assessment of whether I can be satisfied of exceptional circumstances to justify an extension of time. As either a single matter or a combination of the factors, I am required to take into account my findings in relation to the considerations in s.394(3). Having considered my findings, there is not one or a combination of considerations to weigh in favour of an extension of time. Therefore, I am not satisfied that there are exceptional circumstances to grant an extension of time.
Accordingly, the application for an unfair dismissal remedy is dismissed.
An order[29] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Ms V. Kallinteridis on her own behalf.
Mr Z. Mohseni for the Respondent.
Hearing details:
Friday 22 September 2023
Microsoft Teams
[1] Applicant’s Outline of Argument.
[2] Respondent’s Outline of Argument at .para 9(d).
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Form F2 question 1.6.
[7] Written submissions of 12 September 2023 and oral evidence.
[8] Applicant’s Outline of Argument.
[9] Respondent’s Outline of Argument para 8 (b) (iii) (3) (A).
[10] Ibid para 8 (b) (iii) (3) (B).
[11] Ibid para 8 (b) (iii) (3) (C).
[12] Doctor’s Report date 17 August 2023.
[13] Oral evidence of Ms Kallinteridis.
[14] Oral evidence of Ms Kallinteridis.
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[16] Applicant’s Outline of Argument.
[17] Respondent’s Outline of Argument para 9(c).
[18] Form F2 question 3.2.
[19] Applicant’s Response to Form F3.
[20] Ibid.
[21] Applicant’s Outline of Argument.
[22] Applicant’s Response to Form F3.
[23] Ibid.
[24] Form F3 Question 3.1.
[25] Ibid.
[26] Ibid.
[27] Ibid
[28] Respondent’s Outline of Argument para 9(f)(iii).
[29] PR766637.
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