Bajram Zyka v v/Line Corporation
[2024] FWC 3465
•16 DECEMBER 2024
| [2024] FWC 3465 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bajram Zyka
v
V/Line Corporation
(U2024/10695)
| COMMISSIONER YILMAZ | MELBOURNE, 16 DECEMBER 2024 |
Application for an unfair dismissal remedy – application lodged out of time – whether applicant met the minimum employment period - application dismissed.
Mr Bajram Zyka (the Applicant) has lodged a s.394 application under the Fair Work Act 2009 (the Act) for unfair dismissal remedy in relation to the termination of his employment with V/Line Corporation (V/Line or the Respondent).
Mr Zyka commenced employment on 15 January 2024 and his employment terminated on 15 August 2024. V/Line submit that Mr Zyka abandoned his employment, which he disputes. Nevertheless, this application was lodged with the Commission on 9 September 2024, 4 days after the 21-day time limit for lodging an unfair dismissal application.
V/Line further submits that during the period of his employment, Mr Zyka took 3 periods of unauthorised and unpaid leave, or when it was authorised, the leave was unpaid as there was no paid leave entitlement. It further submits that these 3 periods of unauthorised/unpaid leave ought to be deducted from the employment period which results, in a period of less than the 6-month minimum employment period.
In terms of the order of the jurisdictional objections, there is a proper approach to determining the objections.[1] Section 394(2) of the Act requires that an application is made within 21 days of the dismissal, or within a further period that the Commission allows. There is no dispute that Mr Zyka was an employee of V/Line or that his employment was terminated. But the application was lodged on the 25th day after the dismissal which requires the Commission to consider whether there are exceptional circumstances to grant an extension to the 21-day time limit.[2] The first matter to determine is whether an extension of time ought to be granted to the application, otherwise the application is not validly made. The additional jurisdictional objection raised by V/Line is that Mr Zyka had not met the minimum employment period and therefore is not protected by the unfair dismissal provisions.[3] This objection is also dealt with in this decision.
The extension of time application
Exceptional circumstances to satisfy an extension of time 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.[4] 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.[5]
Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the following must be taken into account to determine whether there are exceptional circumstances:
(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.
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 and whether the Applicant was aware of the dismissal after it took effect
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.[6]
While Mr Zyka’s Form F2 Application states that the application was made in time, during proceedings he did not maintain this position, conceding the late application. The explanation given for the delay was that he was absent from work covered by medical certificates and the emails from his employer relating to the termination of employment went to his spam/junk mail.[7] Mr Zyka contends that he immediately filed his application on 9 September 2024 upon finding the letters in his spam/junk mail.[8] He also submits that he never received any texts or calls from his employer other than on one occasion where he received a phone call while at the medical clinic.
Despite the submission that the letters went to spam/junk mail, V/Line contend that the Applicant furnished it with 2 email addresses to which the letters were sent and attempts to communicate with him were also made to his 2 different phone numbers (personal and work mobile) via texts and phone calls.[9] Mr Fernando’s evidence was that on 12 August 2024 the letter proposing to terminate Mr Zyka’s employment was communicated utilising the 4 means of communication. On 15 August 2024, the letter of termination was sent to 5 means of communication.[10] Mr Fernando gave evidence that throughout employment, the employer successfully communicated with Mr Zyka through the work and private email addresses and through his work and personal mobile phone. The Applicant’s last communication with Mr Fernando was from the personal mobile phone on 1 May 2024 and work email on 11 April 2024. The last record of communication to and from Mr Moyle was on 28 June 2024 to the personal email address. Copies of the correspondence were tendered in evidence. Mr Fernando also gave evidence that V/Line received no “failure to deliver” errors other than an email on its first attempt to send on 28 June 2024.[11]
Mr Zyka asks that I consider his submission that the emails went to spam/ junk as reason for the delay and that I ought to grant an extension of time. Mr Zyka was absent from work and he says he had medical certificates that not only justified his absence but that he sent those certificates to his employer (via email and the WorkCover claim by certified mail). No evidence of the certificates for the whole duration of absence from work was presented in evidence other than the following:
· 20 June – 23 June 2024 (medical certificate)
· 25 June – 27 June 2024 (medical certificate)
· 28 June 2024 (medical certificate)
· 1 July – 3 July 2024 (medical certificate)
· 1 July – 14 July 2024 (certificate of capacity which V/Line submits it did not receive)[12]
· 15 July – 13 August 2024 (backdated certificate of capacity which V/Line submits it did not receive).
I observe that V/Line gave evidence that the last certificate it had from Mr Zyka was a medical certificate that expired on 3 July 2024.[13] V/Line submits that no further certificates or communications were received from Mr Zyka from 3 July 2024 until the dismissal on 15 August 2024.
In relation to the means of communication relied on by V/Line, Mr Zyka had access to both his work mobile and work email and according to the evidence the phone number ending in 577 was correct and utilised by V/Line immediately before the dismissal. The email address noted in the application was the email address relied on by V/Line to communicate in August 2024 at least 3 times including the letter of termination. I accept the evidence that no “failure to deliver” messages were received by V/Line.
Mr Zyka produced copies of emails received from V/Line in evidence dated:
12 August 2024, of which he forwarded to the RTBU on 26 August 2024.[14]
15 August and forwarded the same email to the RTBU on 26 August 2024.[15]
16 August regarding return of property forwarded to the RTBU on 26 August 2024.[16]
The above evidence shows that Mr Zyka did not lodge his application on the same day that he found the letters concerning the dismissal. The application was lodged on 9 September 2024, but the emails were forwarded by Mr Zyka to the RTBU on 26 August 2024. On this evidence, Mr Zyka’s evidence is unreliable in so far as it relates to when he became aware of the dismissal, the urgency in which he lodged his application and the reasons for the delay.
Further, I do not accept that the absence on medical grounds is a sufficiently credible reason for the delay to warrant an extension of time. It was the obligation of Mr Zyka to ensure his employer had been informed of his absence, the reasons for the absence and to provide V/Line with the necessary evidence in support of his absence. It is understood and not contested by the parties that Mr Zyka made a Workers Compensation claim in which liability was denied by the insurer, and it is alleged by Mr Zyka that the claim is subject to review. In circumstances where an employee is absent from work, an obligation remains that they communicate with the employer in the usual form, including absences subject to workers compensation. The usual form of communication in Mr Zyka’s case is by email and telephone. The Respondent is not responsible if an email went to spam/junk mail when it relied on an email address provided by the Applicant. I accept the authorities on this same point in support of my decision; emails allegedly found in spam/ junk mail is not a credible reason for the delay if the email address is provided by the Applicant and has been utilised in the course of employment to communicate with the Applicant.[17]
However, 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.[18]
Action taken to dispute the dismissal
Other than lodging this unfair dismissal application, it is not contested that Mr Zyka did not take any action to question, to argue against or to dispute his dismissal. This consideration does not add any weight in favour of an extension of time nor does is weigh against an extension of time being granted.
Prejudice to the employer
Neither party addressed prejudice however I accept an absence of prejudice is not a basis for discretion to grant an extension. [19] Therefore, this is a neutral consideration.
Merits of the application
V/Line submits that Mr Zyka had not communicated during his absence and his absence was both unauthorised and unpaid. In such circumstances, it took the preliminary view that Mr Zyka abandoned his employment, and it then took steps to advise him that his employment may be terminated. Despite efforts to communicate with Mr Zyka before issuing the letter of termination, it received no response. The employment was terminated effective 15 August 2024. Mr Zyka submits that he was absent with medical certificates in support of his absence and therefore the dismissal was unfair. Clearly, in such circumstances the dismissal is contested but it is not for the extension of time proceedings to assess merit. I observe the contest between the parties but make the point that regardless of the absence, Mr Zyka had an obligation to communicate his absence to his employer. It is unclear from the limited evidence if Mr Zyka even communicated or provided his medical certificates directly to V/Line. In any event the whole of the absence was unpaid and likely unauthorised. On the limited information it does appear that V/Line were, within their capacity of employer, entitled to query the absence.
However, for the purposes of these proceedings I consider merit to be a neutral consideration on the basis that the evidence is limited and contested.
Fairness as between the person and other persons in a similar position
Neither party made submissions with respect to s.394(3)(f). For this reason, this consideration is a neutral factor.
Conclusion on extension of time
The bar for an extension of time is a high one requiring the Applicant to demonstrate exceptional circumstances in relation to the factors to be considered in ss.394(3)(a) – (f) of the Act. Mr Zyka did not provide any evidence or submissions in support of the factors to be considered other than the reason for delay. In respect to that reason, he submits the employer’s emails went to spam/ junk mail and he lodged his application promptly on the same day when he became aware of them. The evidence shows that Mr Zyka became aware of the emails sooner but at least on 26 August 2024 and not 9 September 2024 as he submits. Further, emails that are found in spam/junk mail are not considered so exceptional, out of the ordinary or uncommon as to weigh in favour of an extension, particularly when the email address in Mr Zyka’s case was provided by him and used in communication with his employer during the course of the employment.
Having considered each of the required matters in s.394(3), the reason for delay individually or the collective neutral factors fail as exceptional circumstances to justify an extension of time. None of the considerations weigh in support of Mr Zyka’s application and on that basis the application must fail. Consequently, the application for an extension of time is dismissed.
Having concluded that an extension of time cannot be granted in the absence of exceptional circumstances the jurisdictional objection on the grounds that Mr Zyka did not meet the minimum employment period need not be considered. However, for completeness I have considered the evidence in relation to whether Mr Zyka met the minimum employment period. I do find that Mr Zyka did not meet the minimum employment period and below are my reasons for this conclusion.
Minimum Employment Period
V/Line is not a small employer, therefore the minimum employment period that the Applicant is required to meet is 6 months.[20] The period of employment with the employer is the period of continuous service[21] as defined in s.22 of the Act::
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period ) that does not count as service because of subsection (2).
(2) The following periods do not count as service:(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:(i) a period of absence under Division 8 of Part 2 - 2 (which deals with community service leave); or
(ii) a period of stand down under Part 3 - 5, under an enterprise agreement that applies to the employee, or under the employee's contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee's continuous service with his or her national system employer, but does not count towards the length of the employee's continuous service.
V/Line submits that Mr Zyka’s absence from employment consisted of periods of unauthorised leave or at least unpaid leave, and, because this period does not count towards the meaning of service in ss.383 and 22, he has no protection from unfair dismissal. Mr Zyka raised a number of times during the hearing his concern regarding the lawfulness of V/Line’s extension of his probation period because of his 2-month unpaid absence from employment. However, the probation period is not a consideration, but rather the period of employment must meet the minimum employment period as defined by the Act.
V/Line tendered evidence concerning the 3 periods of unpaid absence, which was not contested by Mr Zyka.[22] The periods of absence relevant to this matter consist of:
3 February 2024 – 2 April 2024, unpaid sick leave due to a non-work-related toe injury. No sick leave application form was submitted by Mr Zyka consistent with V/Line policy despite requests from him to do so (first period of absence).
22 June 2024 – 3 July 2024, medical certificates were provided but no leave application form was submitted to V/Line. During this period 16 hours was paid and 24 hours was unpaid (second period of absence).
4 July 2024 – to 15 August 2024, which V/Line deemed as an unauthorised absence because while a Worker’s Injury Claim Form was received on 4 July, no medical certificates in support of the absence were received (third period of absence).
It is not contested that the above periods were unpaid except for the 16 hours in the second period of absence. The periods of absence were unpaid because Mr Zyka had no entitlement to personal sick leave and, for the third period of absence, the workers compensation insurer denied the claim. Mr Zyka contended that he provided medical certificates to his employer for the third period of absence, but no evidence in support was submitted.
Mr Zyka is required to meet a minimum employment period of 6 months. An assessment of the period of employment, less the period of unpaid leave shows that Mr Zyka satisfied 14 weeks or 3.5 months of service. . This is shown below:
· The contract provides for 16 hours per fortnight with the requirement to work additional hours. Mr Fernando gave evidence that Mr Zyka was rostered for additional hours and asked to work overtime.[23]
Commencement 15 January – 31 January 2024 = 2.5 weeks of work.
First period of absence 3 February – 2 April 2024 = 8 weeks of unpaid absence.
Return to work 3 April – 21 June 2024 = 11.5 weeks of work.
Second period of absence 22 June – 3 July 2024 = 1.5 weeks of absence but paid 16 hours, 24 hours unpaid.
· Third period of absence 4 July – 15 August = 6 weeks of absence without notification nor medical certificate- —all unpaid.
Clearly Mr Zyka was both absent from work for 14 weeks at a minimum and completed a full 14 weeks of work. The second absence of which 16 hours were paid and 24 hours unpaid is insufficient to tip the minimum employment period to 6 months. In 7 months of employment Mr Zyka was absent on unpaid leave or unauthorised leave for 14.5 – 15 weeks; that is a period of more than 3 months. At best, Mr Zyka completed a minimum employment period of 4 months.
On a simple review of the period of employment less the period of unpaid and/or unauthorised leave Mr Zyka did not fulfil the 6-month minimum employment period for protection against unfair dismissal. It is appropriate in this matter to deduct the periods of unpaid and/or unauthorised absences. This deduction is consistent with the requirements of ss.383 and 22 of the Act. None of the periods of absence are covered by the exemptions prescribed by s.383 or the Regulations.
Conclusion
Mr Zyka did not satisfy the requirements for an extension of time under s.394(3)[24] nor did he meet the minimum employment period required under s.383, therefore this application is dismissed.
COMMISSIONER
Appearances:
B Zyka, Applicant
H Hilliar with R Glover for the Respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams)
4 December.
[1] Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234.
[2] Fair Work Act 2009 (Cth) s.394(3).
[3] Ibid s.382.
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[5] Ibid.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39] (‘Stogiannidis’).
[7] Oral evidence, response to Form F3 and sworn written statement. Digital Court Book (‘DCB’) 10 – 13.
[8] Oral submissions.
[9] Exhibit R1 Affirmed statement of Mr Muditha Fernando. DCB [22] (‘Fernando Statement’).
[10] Ibid [23], inclusive of work email.
[11] Ibid [16] – [21] and attachments MF-11 and MF-12.
[12] Ibid [10].
[13] Ibid [12].
[14] Exhibit BZ3. DCB 37 – 38
[15] Exhibit BZ4, DCB 42 – 44.
[16] Exhibit BZ5, DCB 48 – 50.
[17] Dennis Kamau v OC Connections[2020] FWC 4641; Carrie Forrest v the Commonwealth of Australia as Represented by Services Australia[2024] FWC 455.
[18] Stogiannidis, [39].
[19] CFMMEU v Forever New Clothing Pty Ltd (2022) FedCFamC2G 366, [51]; Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[20] s.383(a) Fair Work Act 2009.
[21] s.384(1) Fair Work Act 2009.
[22] Oral evidence of Mr Zyka; Fernando Statement, DCB [6].
[23] Fernando Statement, DCB [4].
[24] See paragraph 23 of this decision.
Printed by authority of the Commonwealth Government Printer
<PR782367>
0
4
0