Boyan Bizoev v Node Energy Services Pty Ltd
[2022] FWC 890
| [2022] FWC 890 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Boyan Bizoev
v
NODE Energy Services Pty Ltd
(C2022/1168)
| DEPUTY PRESIDENT BELL | MELBOURNE, 21 APRIL 2022 |
General protections dismissal dispute – application filed out of time – circumstances not exceptional - application dismissed.
Mr Boyan Bizoev (Applicant) made an application (Application) to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Node Energy Services Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act.
I note at the outset that the termination of the Applicant’s employment is not without some history. The Applicant’s employment was terminated on 4 June 2021 (a matter not in dispute). The letter of termination, dated 3 June 2021, states the termination was by way of redundancy. At the time, the Applicant challenged that dismissal and made an application (the unfair dismissal application) for an unfair dismissal remedy. Objections were taken by the Respondent, primarily on the ground that the dismissal was by way of genuine redundancy for the purposes of s.389 of the FW Act.
The jurisdictional objection to the unfair dismissal application was heard by Deputy President Boyce, who upheld the jurisdictional objection and dismissed that application. The Deputy President issued reasons for decision, dated 30 August 2021.[1] No appeal followed.
The Respondent has objected to the Application (i.e. the current application) on the ground that the Application is out of time.
It is a matter of record that the current application was made on 16 February 2022. It is not in dispute, and I so find, that the dismissal took effect on 4 June 2021. Given that s.366(1)(a) of the FW Act provides that an application must be made within 21 days after the dismissal took effect, the application was made approximately 236 days late.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been with 21 days after 4 June 2021. The delay is the period commencing immediately after that time until the date the current application was lodged on 16 February 2022, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]
Submissions and evidence
The Applicant submitted that the delay was for the following reasons:
“2. Since the claim and outcome there is new information to suggest that evidence provided in the Unfair Dismissal hearings was false and misleading and may have influenced the outcome
a. The respondent referred to two employees that left the organisation, one named Direshni Patel however information suggests that this employee did not actually leave the organisation at all and is still currently working at the organisation since prior to the hearing
3. A legal review has identified a number of breaches of the applicant’s general protections including adverse action leading to lodgment of a general protections dismissal claim
a. During the applicant’s employment bullying took place which caused psychological pain and suffering to the applicant
b. The applicant made a complaint about bullying to the respondent shortly prior to being made redundant
c. Misrepresentation about a code of conduct policy in the employment contract, which was not provided to the applicant upon request on multiple occasions
d. The applicant was not paid a casual loading rate for work performed as a casual employee for the entire duration of employment”.
The Applicant’s evidence in his witness statement was that:
“Reasons include
a. Following the dismissal an initial unfair dismissal application was lodged within the 21- day time window (U2021/5559)
b. The general protections dismissal application is based on new information since the initial unfair dismissal application. The information indicates that the outcome may have been based on false and misleading evidence provided by the respondent during the hearings and therefore may be entitled to a review”
In support of the “new information” referred to, the Applicant’s evidence includes a screenshot from the ‘LinkedIn’ profile of Ms Direshni Patel. That screenshot describes Ms Patel as a “Principal Power Systems Engineer” with the Respondent from October 2021 to the present and, before that, as a “Senior Power Systems Engineer” with the Respondent from August 2019 to October 2021. In oral evidence, the Applicant stated in substance that he was told on about 3 June 2021 that Ms Patel had left the company, although he now does not know if that was actually the case or, if she did leave, when she returned.
The Respondent did not file a witness statement. It filed an email (addressed to an aspect of the bullying complaint) and a copy of Deputy President Boyce’s Reasons For Decision in the unfair dismissal application. The Respondent filed brief submissions. In relation to the employment of Ms Patel, it submitted:
“5. The applicant’s role was made redundant following a number of operational changes that occurred between March and May 2021. Client demand for different services, completion of a large client project and resignation of 4 key staff from the business, necessitated a reorganisation.
6. New details regarding the return of a senior member of the business in October 2021 after months of renegotiation, does not nullify the business requirement to restructure at the time of the decision.”
The Respondent’s submission about a “return” of an employee appears to concern Ms Patel and to also suggest she had left for at least a brief period (hence her “return”). As the Respondent’s submission was not supported by evidence, I give it little weight.
Findings
Having regard to the above, I find that the reasons for delay were essentially threefold.
First, the Applicant initially pursued a remedy for unfair dismissal. In doing so, he pursued that at the expense of pursuing ‘general protections’ claims under Part 3-1 as he now seeks to do.
Second, the Applicant explains his delay by reference to “new information”. The “new information” concerns Ms Patel’s employment status. In respect of the new information, it is perhaps better characterised as a belief or suspicion about the circumstances in which Ms Patel is employed and the reasons why she was employed. It falls a long way short of establishing that the Respondent gave “false or misleading evidence” before Deputy President Boyce and still further from providing a foundation that the “outcome” of that hearing was affected by it. Even if those hurdles were crossed (and I am not satisfied they are), the forum for revisiting those issues is not a new application based on new causes of action. This leads onto the final reason for delay identified by the Applicant.
The third matter is described as a “legal review”. In his oral evidence, the Applicant explained he sought legal advice very soon after his dismissal (and before he lodged his unfair dismissal application). The Applicant also explained that he sought legal advice about unfair dismissal as well as general protections dismissal rights and acted upon that advice. The alleged general protections contraventions described in the Applicant’s ‘Form F8’ (and which are reflected in his witness statement and submissions) may be broadly grouped as follows:
· Alleged bullying conduct (in a variety of formats) and enquiries or complaints said to have been made about that conduct.
· An alleged misrepresentation about the existence of a “Code of Conduct” and possible complaints or enquiries about that matter.
· An alleged failure to pay a casual loading and possible complaints or enquiries about that matter.
It is not necessary to rehearse the content of these allegations. It is sufficient to note some aspects about their timing.
· The bullying allegations are said to have manifested at least up until April 2021, when the Applicant says he made a complaint about them.
· The misrepresentation appears to have manifested from the start of his employment in December 2019, and he points to the fact that a “code of conduct” is referred to in his employment contract. The Applicant’s witness statement indicates that, in September 2020, he enquired about that policy and was told the company did not have one at that stage. The Applicant offered to develop such a code, but that offer was declined. The code was also raised by the Applicant on other occasions prior to his dismissal.
· For the casual loading, the Applicant’s evidence indicates he raised this issue in November 2020. He was told at the time that a casual loading of 25% was being paid.
Regardless of the merits of these general protections claims, I consider that the Applicant was in a position to pursue these general protection dismissal claims at the time of his dismissal. I accept that the “new information”, such as it is, might have prompted the Applicant into bringing his current claim.
Nonetheless, I find that the prime reason for delay is that the Applicant pursued an unfair dismissal remedy. In pursuing that remedy, the Applicant was faced with a potential choice when deciding which remedy for a dismissal he wanted to pursue. This is not uncommon.
By s.725 of the FW Act, a person “must not” make an application or complaint of a kind in any one of ss.726 to 732 in relation to the dismissal if any of those other sections apply. The statutory scheme means an “employee is faced with an election”[6] in choosing which action to pursue.
Section 727 addresses “general protections FWC applications”, which is an application under s.365. Section 729 addresses an “unfair dismissal application”. Suffice to say, until the Applicant’s unfair dismissal application “failed because the FWC was satisfied that the dismissal was a case of genuine redundancy” (s.729(1)(b)(iii)), the Applicant was prohibited from subsequently pursuing an application under s.365.
Regardless of the mandatory effect that s.725 had on the Applicant’s ability to pursue a general protections action while the unfair dismissal action was on foot, it is clear that the Applicant was willing for his unfair dismissal action to run its course as the vehicle in which the core relief he was seeking would be pursued.
What action was taken by the Applicant to dispute the dismissal?
It is not in dispute, and I so find, that the Applicant took actions to dispute his dismissal prior to making the application on 16 February 2022. As the Applicant states, he did so by pursuing his unfair dismissal application.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Applicant submits there is no prejudice to the employer. The Respondent submits that it would suffer prejudice if an extension of time were granted. The Respondent submits that the general protection claim concerns the “same matter of dismissal” as heard under U2021/5559 and an extension of time would “result in effort and time relitigating the same facts”.
I do not consider the Respondent’s submission is entirely correct. While there might be some relitigation of common facts (a matter the Applicant acknowledged in his oral evidence), the general protections claims raise substantially new issues.
Nonetheless, I consider there will be some prejudice to the Respondent having regard to the clear Parliamentary intent by s.725 of the FW Act that a person who has been dismissed needs to elect which cause of action will be pursued in relation to the dismissal. In the present case, the Applicant chose to pursue an unfair dismissal remedy. He was entitled to do so, although was ultimately unsuccessful. The effort placed by the Respondent in answering that case would be substantially wasted if the Applicant was subsequently given permission to pursue other claims that were open to him, but not taken, at the time. The Respondent would also be exposed to some prejudice to the extent that common issues are sought to be relitigated.
What are the merits of the application?
The three broad categories of the Applicant’s claims are set out above.
The bullying claim (and associated complaint about it) is at least conceptually capable of forming a complete cause of action that resulted in his dismissal. I express no views on the conduct said to constitute the alleged bullying, as this will ultimately turn on contested issues of fact.
Notwithstanding this, the Applicant would have to establish that he was dismissed “because” he exercised a workplace right: s.340(1)(a). The difficulty this claim faces is that the dismissal has been found to be a case of genuine redundancy. In the Applicant’s favour, a claim based on s.340 of the FW Act need only rest on reasons that “include” a prohibited reason and that a prior finding of genuine dismissal might not be a complete answer. However, given that the finding of genuine redundancy followed after formal findings in relation to the dismissal and no part of those findings made reference to any of those matters, this suggests that the Applicant’s complaints about bullying leading to his dismissal is causally weak.
The Applicant’s claims for misrepresentation and casual loading do not appear connected to the dismissal at all and do not appear to be properly within the scope of an application under s.365. If it is the case that the Applicant says he was dismissed following complaints or enquiries about those matters then, like the bullying claim, they are conceptually capable of forming a complete cause of action. So far as they purport to relate to the dismissal, however, the claims appear also causally weak for the same reasons as the bullying allegations. However, there is insufficient information for me to form an assessment of these matters.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[7] 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.[8]
The delay in the present case is extensive. The reasons for delay are in large part due to the Applicant’s pursuit of an unfair dismissal remedy. Necessarily, that excluded the ability of making a general protections application under s.365 once the unfair dismissal application was on foot.
Moreover, I am satisfied that the Applicant was in a position to have pursued all the claims listed in his current application at the time of his dismissal, if he elected to do so. While his perception of alleged “false” evidence from his unfair dismissal hearing might have subsequently fortified his view about such matters, I consider it has at best a tangential relevance to justifying the delay. The Applicant’s “legal review” undertaken immediately following his dismissal does not otherwise explain the delay and, to the contrary, underscores that the Applicant was in a sufficient position at the time of his dismissal to have made an application under s.365 instead of his unfair dismissal application.
It is clear that the Applicant has taken steps to challenge his dismissal by his unfair dismissal application. That said, those proceedings were resolved by Deputy President Boyce, who delivered reasons on 30 August 2021. There remains a significant delay from those reasons to the Applicant’s current application.
The merits of the Applicant’s claims appear poor based on the information before me but it is not necessary for me to form a concluded view about that and I treat that factor neutrally. I am not aware of any factor raising considerations of fairness between the Applicant and other persons in a similar position.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[9] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
B Bizoev on his own behalf
No appearance for the Respondent
Hearing details:
2022.
Melbourne (by video link via Microsoft Teams):
April 13.
[1] [2021] FWC 5251.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Cook v Australian Postal Corporation [2018] FCA 81 at [76].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] PR740447
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