Con Markos v Nine Network

[2020] FWC 59

[2020] FWC 59

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Con Markos
v
Nine Network
(U2019/10338)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 8 JANUARY 2020

Application for an unfair dismissal remedy – Links Operator – casual employee – extension of time – whether dismissed – whether minimum employment period served – dismissal found - no exceptional circumstances for late lodgement – application dismissed

[1] On 16 September 2019 Con Markos (Mr Markos or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Channel 9 South Australia Pty Ltd (Nine Network, Nine or the Respondent Employer).

[2] His application is opposed by the Nine Network, which raises three jurisdictional objections.

[3] There is a dispute as to whether Mr Markos, as a casual employee, was dismissed and the date any such dismissal took effect. The Nine Network claims that following his last worked casual shift on 7 October 2018 he was not offered further shifts but remains ‘on the books’. Mr Markos claims that he was dismissed in mid to late October 2018 when he was no longer rostered for shifts.

[4] There is no dispute that Mr Markos’s application is out of time, whatever the effective date of dismissal. The delay is in the order of ten months. There is a dispute as to whether exceptional circumstances exist so as to warrant an extension of time. Mr Markos says that exceptional circumstances led to the delay. The Nine Network dispute this proposition.

[5] There is a dispute as to whether Mr Markos, if dismissed and if the time to file his application is extended, meets the minimum employment period (in this matter, of six months 1) so as to be protected from unfair dismissal. The Nine Network claims that his service as a casual employee was not regular and systematic and that he had no reasonable expectation of continuing employment on that basis. Mr Markos disputes these propositions.

[6] I heard these three jurisdictional issues (whether dismissed, whether time for filing should be extended and whether minimum employment period met) as threshold matters at a telephone hearing on 13 December 2019.

[7] This decision concerns those issues.

[8] In advance of the hearing I directed Mr Markos to file materials in support of his application for the extension of time, and for the Nine Network to do likewise in support of their jurisdictional contentions. 2 Each party did so.

[9] At the hearing, and in light of complexity raised by the jurisdictional issues and without objection, I granted permission for the Nine Network to be represented by a legal practitioner. Mr Markos was self-represented but assisted by a support person, Mr Psevdos who (with my permission) undertook some advocacy on his behalf.

[10] Proceedings were audio recorded.

[11] I heard evidence from three persons: Mr Markos (orally and via two witness statements), Mr Donald Dyson (orally and via two witness statements) and Mr Wayne Schubert (orally and via witness statement). Mr Dyson and Mr Schubert were called by the Nine Network.

[12] Each witness gave evidence conscientiously though the effluxion of time between the events of October 2018 and the hearing date (December 2019) impacted the precise recall of all witnesses. Most factual matters are agreed though there are some disputes about technology now used by the Respondent Employer in live crosses, and the precise terms of a conversation between Mr Markos and Mr Schubert in Victoria Square on or about 26 October 2018.

[13] I make findings based on the manner in which evidence was given, its consistency with corroborating documentary evidence and inherent plausibility.

The Facts

[14] I make the following findings.

[15] The Nine Network is a national commercial television broadcaster with a wholly owned South Australian subsidiary based in Adelaide which employed Mr Markos.

[16] Mr Markos was first employed by the Nine Network as a Links Operator in July 2014. His employment was formalised by a written contract signed by Mr Markos on 26 July 2014. 3

[17] Mr Markos remained employed in this role until he worked his last shift on 7 October 2018.

[18] At all relevant times Mr Markos was employed as a casual employee.

[19] As a Links Operator, Mr Markos typically worked on outside broadcasts with a camera crew and journalist in urban and regional locations. He (and other casuals) often (but not always) did so after hours (such as weekends and public holidays) when permanent staff were not rostered. 4 He performed a technical task that sent live vision, sound or footage recorded by a cameraman to the studio.

[20] Across these four years, Mr Markos worked most weeks (on 192 of 221 weeks). 5 Aside from three blocks of six, four and four weeks respectively (in July / August 2016, November 2017 and September 2018) when he was granted permission to be absent overseas, his weeks not rostered were sporadic and usually associated with his request for absence (not lack of work).

[21] However, the number of hours worked by Mr Markos varied significantly throughout the four years, ranging from as low as 4 hours per week to a high of 42.5 hours per week. 6

[22] The work by Mr Markos was not his sole source of income. For the first two years of his employment he operated a franchise business. In the last year his work with the Nine Network was his sole employment as he had ceased operating the franchise business.

[23] Mr Markos was only paid for hours he worked. He received no paid leave. Mr Markos received no income from the Nine Network beyond his last shift on 7 October 2018. His last shift was of 4 hours duration. He was paid for that shift in the pay cycle in the week of 18 October 2018. 7

[24] When Mr Markos worked he was rostered work in advance, though the amount of notice varied. There were permanent and other casual Links Operators who worked for the Nine Network. He was one of the pool of casuals.

[25] In the period immediately prior to October 2018 Mr Markos reported to the Links Supervisor Mr Schubert, who in turn reported to the Operations Supervisor (a Mr Rose) and the Operations and Technology Manager, Mr Dyson.

[26] Rosters were prepared on a weekly basis for full time and casual Links Operators by Mr Schubert in consultation with Mr Dyson and Mr Rose. 8

[27] Between his last shift on 7 October 2018 and the following “couple of months” Mr Markos made occasional telephone inquiries of the Nine Network (directed to Mr Schubert) about when he would again be rostered. I make specific findings about this matter in considering whether Mr Markos was dismissed.

[28] Those occasional inquiries by Mr Markos ceased by no later than the end of February 2019.

[29] Between 7 October 2018 and the date Mr Markos filed his application (16 September 2019), no person associated with the Nine Network offered shifts to Mr Markos or made inquiries as to his availability to work shifts.

[30] Between March 2019 and the date of filing his application Mr Markos made no further substantial inquiries of the Nine Network as to whether he would be offered shifts or advised of his availability to work shifts.

[31] Mr Markos received no written advice or information from the Nine Network as to his employment status since his last shift on 7 October 2018.

[32] Mr Markos filed his unfair dismissal application on 16 September 2019, some 49 weeks (343 days) after he worked his last shift.

Consideration

[33] For Mr Markos’s application to fall within the Commission’s jurisdiction it is, for current purposes, necessary that:

•  Mr Markos was dismissed within the meaning of section 386 of the FW Act; and

•  Mr Markos was a person protected from unfair dismissal within the meaning of section 382 (and sections 383 and 384) of the FW Act; and

•  Mr Markos’s application was filed within 21 days of his dismissal taking effect as required by section 394 of the FW Act (unless an extension of time is granted).

[34] In order to determine whether an extension of time should be granted, it is necessary to make a finding of fact as to whether Mr Markos was dismissed and if so when his dismissal took effect.

[35] Thus, I will first determine that question. If I find that Mr Markos was dismissed effective earlier than 21 days before filing his application, I will then determine if an extension of time should be granted. If I find that an extension of time should be granted I will then determine if Mr Markos met the minimum employment period so as to be protected from unfair dismissal. It is only necessary to make a finding on this latter point if the application is out of time and the time for lodgement is extended.

Was Mr Markos dismissed and, if so, from when?

[36] It is a pre-condition to determining an unfair dismissal application under the FW Act that an applicant be a person who has been dismissed. 9

[37] Section 386 of the FW Act provides:

“386 Meaning of Dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[38] To determine if there has been a termination on the employer’s initiative I make further findings of fact.

[39] I have found that Mr Markos worked his last shift on 7 October 2018.

[40] On or around this day Mr Markos noticed that he had not been rostered on the next week’s roster. He asked Mr Schubert if that was so. Mr Schubert advised Mr Markos that he had not been rostered but that he was “still on the books” and not to worry. Mr Markos accepted this on face value. 10

[41] A week later Mr Markos noticed that he had still not been rostered the following week. He sought out Mr Schubert for an explanation. Mr Shubert phoned him back. Mr Schubert advised Mr Markos as follows: 11

“On 17 October 2018, I telephoned Mr Markos and we engaged in a conversation in words to the following effect:

Mr Schubert: “Together with the Operations team, we looked at Links Shifts leading up to Christmas and the next year and we could not see any shifts for you with Nine now not having Cricket, TDU and football, which will not start again until later next year”

Mr Markos: “Please keep me in mind if anything changes”

Mr Schubert: “I will let you know if anything changes”

[42] Mr Markos saw Mr Schubert by chance about a week later (26 October 2018) in Victoria Square, Adelaide while Mr Schubert was doing a links job. There is a dispute as to what was said. Mr Schubert says that nothing was said about the roster, and that it was simply a hello and goodbye. Mr Markos says that there was a brief conversation in which he asked if anything had changed about the roster and was told words to the effect “nothing has changed”.

[43] Mr Markos’s recall of this conversation was superior to Mr Schubert’s. Mr Markos’s evidence is also plausible given that the evidence of both Mr Markos and Mr Schubert was that on a number of occasions in and following October 2018 Mr Markos sporadically contacted Mr Schubert and asked about the roster and was told words to the effect “nothing has changed…link jobs are ramping down leading to Christmas.” 12

[44] Both Mr Schubert and Mr Markos could not recall precisely when the occasional telephone calls ended. Mr Schubert thought it was not past December 2018. Mr Markos said that he may have made calls into 2019. I accept Mr Markos’s evidence that he made one or two calls in early 2019 but I do not accept his evidence that these calls continued until as late as August 2019. I find that by at least no later than the end of February 2019 Mr Markos ceased making enquiries of Mr Schubert or anyone at the Nine Network about his rostered hours or whether he would be further rostered.

[45] Mr Markos had no further contact of significance with the Nine Network until after he filed his unfair dismissal application in the Commission on 16 September 2019.

[46] The Nine Network says that Mr Markos remained in the casual pool at the time his application was filed (September 2019) and at the hearing (December 2019) even though he had not been offered work since October 2018.

[47] The Nine Network also says that its demand for casual Links Operators declined in late 2018 and throughout 2019 due to operational changes (the loss of certain contracts for live sports) and technological changes (the use of portable link systems whereby cameramen can use technology to feed footage directly to the studio). The Nine Network says that whilst permanent and casual Links Operators are still employed, it now prefers to use those who can perform a broader range of skills.

[48] Mr Markos strongly disputes these propositions. He says that a new Links Operator was employed prior to him losing his shifts. He says that he has the skills to utilise new technology and learn a range of additional functions (if required) and had equal if not superior experience to others.

[49] I do not need to make findings of fact on these issues. They relate to the merits of the claim, that is, whether the dismissal (if any) was for a valid reason.

[50] I find that at least from the time Mr Schubert spoke to Mr Markos on 17 October 2018 Nine had made a decision not to give active consideration to offering Mr Markos any further work as a Links Operator from the casual pool. The repeated advice he was given by Mr Schubert between October 2018 and February 2019 that “nothing has changed” was an indication that, for whatever reason, he was not being further rostered. Despite this, having been initially told that he remained in the casual pool despite not being rostered after 7 October 2018, he was not advised to the contrary.

[51] From week to week Mr Markos worked a variable number of hours but was regular in working from week to week. In circumstances where Mr Markos worked on 192 of the previous 221 weeks until 7 October 2018 and on none of the 49 weeks between 7 October 2018 and 16 September 2019 it is an irresistible inference to draw that the Nine Network no longer considered Mr Markos its employee shortly after 7 October 2018.

[52] Allowing for a period of decision making it can be safely concluded that Mr Markos had been dismissed at least by 17 October 2018 when Mr Schubert advised Mr Markos by phone that “we could not see any shifts for you” due to changes in sports coverage.

[53] I find that this was the date Mr Markos’s dismissal took effect being the date when it was confirmed to him that he was not to be rostered in the foreseeable future, and why.

[54] The Nine Network submits that, as a matter of fact, Mr Markos was not dismissed because he remains (so it says) in the pool of casual employees.

[55] As a matter of fact, I do not make this finding, which is to be determined by examining the evidence in an objective manner, and not simply based upon the subjective assertion or belief of a company officer.

[56] I do not accept that Mr Markos was in the last months of 2018 or during 2019 (including at the time of filing his application) in the casual pool of Links Operators despite the assertion of Mr Dyson in his evidence.

[57] The objective evidence points strongly in the opposite direction:

•  the Respondent Employer made no inquiries of Mr Markos’s availability to work between October 2018 and September 2019 despite from time to time employing other Links Operators in this period from its casual pool;

•  at no stage in this period did Mr Markos indicate that he was unable or unavailable to work; and

•  Nine’s only communication was at Mr Markos’s instigation (in the months after October 2018) and on each of those occasions he was told that nothing had changed from the 17 October 2018 advice that “we could not see any shifts for you”.

[58] The claim by the Nine Network that Mr Markos remained in the casual pool despite not being approached to work any shifts for 49 consecutive weeks after his last shift (58 consecutive weeks by the hearing date) has such an air of unreality that it cannot be countenanced. Even if in some technical sense Mr Markos’s name had not been removed from Nine’s employment records or its list of casuals (on this I have no evidence) the absence of any evidence about active consideration of his employability renders this aspect of Nine’s case unpersuasive and implausible.

[59] The Nine Network further submits that Mr Markos, as a casual employee, could not as a matter of law be dismissed as he was a casual employee whose contract ended with the last hour of the last shift he worked.

[60] In support of this position Nine point to the contract of employment entered into by Mr Markos. That contract relevantly provided: 13

“Hours

As you are employed on a casual basis, the Company may offer you work on an hourly basis, and you will be engaged by the hour. You should have no expectation of continuing employment with the Company.”

[61] I find that at common law there was a contract of employment as a casual in which Mr Markos was employed by the hour and agreed to hold no expectation of continuing work beyond the last hour of the last shift he performed.

[62] However, the common law position is not a complete or final answer to the legal issue as to whether a casual employee can be dismissed for the purposes of the unfair dismissal provisions of the FW Act.

[63] The unfair dismissal jurisdiction is a statutory jurisdiction, one that creates a cause of action upon the termination of employment for those persons protected from unfair dismissal, beyond the rights that exist at common law to sue for breach of contract or notice. In this sense, the statute supplements or varies limits established by the common law on the rights of certain employees.

[64] Included in the scheme of the unfair dismissal provisions in Part 3-2 of the FW Act is section 384, which concerns the circumstances in which a casual employee is to be regarded as protected from unfair dismissal. That section requires a casual employee’s service during the minimum employment period to have been regular and systematic and for that employee to have had a reasonable expectation of continuing employment on that basis in order to be so protected.

[65] Section 384 is a clear indication of statutory intent that casual employees meeting this criteria are able to access the statutory cause of action. 14 Upon a casual employee meeting this criteria, and provided other statutory conditions are met (such as applications being filed within time) the jurisdiction is accessible to that class of casual employees. It would be a perverse result if a casual employee was protected from unfair dismissal by section 384 but unable to access the jurisdiction because the nature of casual employment at common law acted as an estoppel on the ground that there was no dismissal (more particularly, no “termination on the employer’s initiative’) within the meaning of section 386. As noted by a Full Bench of the Commission:15

“If that situation was incapable of being characterised as a dismissal under s 386(1)(a) it would substantially or entirely defeat the operation of s 386(2)(a).”

[66] Equally, the fact that a casual employee meets the criteria in section 384 does not automatically mean that the employee has been dismissed when they are no longer rostered. 16 In deciding whether a casual employee has been dismissed all relevant factors need to be considered. This includes the conduct of the parties as well as the terms of the contract entered into, the manner in which the contract was implemented, how rostered hours came to be offered, secured and performed and how rostered hours came to cease. Self-evidently, a casual employee can resign. If their resignation is not a forced resignation within the meaning of section 386(b) of the FW Act the employee will not have been dismissed despite their employment having come to an end.

[67] On the facts before me, Mr Markos was regularly rostered during the preceding four years in the sense of being rostered week to week and this was via a roster generally notified to him in advance. He neither took nor communicated any decision to resign or make himself unavailable for ongoing work. When he finished his last shift on 7 October 2018 he had a reasonable expectation of similarly being rostered for another shift within the next week or fortnight, given the regularity of his roster. The manner in which his contract had been worked created a reasonable expectation of continuing employment beyond the last hour of his last shift. In the circumstances of this matter, the regularity on which he worked during 192 of the preceding 221 weeks and the failure to roster him for the following 49 weeks was a dismissal for the purposes of the unfair dismissal provisions of the FW Act notwithstanding clause 4 of his contract of employment.

[68] I conclude that Mr Markos was dismissed by the Nine Network and that his dismissal took effect from 17 October 2018.

Should an extension of time for filing be granted?

[69] Having found that Mr Markos’s dismissal took effect on 17 October 2018 when Mr Schubert confirmed that he was not rostered and why, it follows that Mr Markos’s application was filed 333 days after his dismissal took effect.

[70] Given that section 394(2) of the FW Act requires applications of this nature to be filed within 21 days, for Mr Markos’s application to proceed, he requires the Commission to grant an extension of time for the filing of his application. It was required to be filed by 7 November 2018. It is 312 days out of time.

[71] The provisions of the FW Act governing whether an extension of time should be granted are set out in section 394(3):

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[72] Mr Markos’s application can only proceed to determination on the merits if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time.

[73] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances warranting an extension of time. 17

[74] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant. 18 A decision whether to extend time under s.366(2) involves the exercise of a discretion.19

[75] I consider the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 20:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[76] The principles of Nulty have recently been cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR. 21

[77] I now consider each of the factors set out in section 394(3) of the FW Act.

Reason for the delay (section 394(3)(a))

[78] The reason for the delay in lodging an application is one of the factors that must be taken into account. The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight. 22 

[79] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional. 23

[80] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged.

[81] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 24

[82] There are two periods of delay.

[83] The first period of delay is the 16 week period between 8 November 2018 and the end of February 2019. During this period Mr Markos made occasional telephone calls (in all probability about four or five) to Mr Schubert inquiring as to when he would be again rostered for work by the Nine Network. These calls followed the occasional calls Mr Markos made in the first three weeks following his dismissal (in all probability one or two, plus the brief conversation with Mr Schubert in Victoria Square on 26 October 2018).

[84] The second is the 29 week period between 1 March 2019 and 16 September 2019 when Mr Markos had no further contact with the Nine Network, either at his instigation or Nine’s.

[85] Mr Markos’s explanation for the delay is that “on my last day of work I was told by my supervisor that I was still on the books. I have only found out very recently that this was not true.” 25

[86] Mr Markos’s evidence was that he had been informed in or about September 2019 by a person associated with the Nine Network (who he declined to name) that he (Mr Markos) was not to be considered for casual Links Operator work and had been removed from the pool of casual employees. Mr Markos claimed that he had not been informed of this by the Nine Network. He says he was taken aback by this information. He considered it “concrete evidence” that he had been dismissed and filed these proceedings as a result. Until then he did not believe that he had “concrete evidence”. 26

[87] I do not make findings on the accuracy of the information Mr Markos said he was advised that prompted his application being filed in September 2019. This evidence was hearsay and unable to be tested by the employer as Mr Markos declined to name his source. Whist I find that Mr Markos received information in September 2019 that prompted his application, I make no finding as to the truthfulness of that information.

[88] However I have separately found that Mr Markos was not in any active sense in the pool of casual employees at the time he filed his application.

[89] The mixed messages communicated by Nine contributed to confusion on the part of Mr Markos. He had been told by Mr Schubert on or about 7 October 2018 that he remained in the pool of casual employees yet on 17 October 2018 he was told that Nine could see no shifts for him.

[90] Nine did not subsequently inform Mr Markos in any express way that he was not a member of the casual pool or that he was not being actively considered for work (even if technically in the casual pool). Nine can be fairly criticised for the mixed messages it communicated to Mr Markos about his employment status and for subsequently not providing clarity about his chances of being further rostered as the weeks and months went by. In this respect, Nine was not fully candid with Mr Markos.

[91] However, even though Mr Markos was under a misapprehension about his status as a member of the casual pool during the first and second periods of delay and even though Nine contributed to this misapprehension, his misapprehension is not a reasonable explanation for the length of the delay, especially with respect to the second period. Mr Schubert had made it clear in each of his phone conversations with Mr Markos during the first period of delay that “nothing had changed” since 17 October 2018; that is, nothing had changed from Nine’s view that “we could not see any shifts for you...I will let you know if anything changes”.

[92] Moreover, as the weeks and then months passed when he was neither contacted by Nine let alone offered a shift it ought to have become evident to Mr Markos that his employment was not continuing or increasingly unlikely to be re-activated by Nine.

[93] The failure by Mr Markos to make any contact with Nine between March 2019 and September 2019 is, in objective terms, evidence of that reality.

[94] To the extent that Mr Markos still believed he was a member of the casual pool during this second period of delay, he took no action during this period to seek clarification of his status, question the lack of interest from Nine or indicate his continuing readiness to take shifts.

[95] In these circumstances, delaying making an application by 312 days (ten months) until forming a belief (whether from an inside source or otherwise) that he was not a member of the casual pool is not a reasonable explanation for the delay. That belief was capable of being formed at least by the end of the first period of delay after which both Nine and Mr Markos ceased contact.

[96] Mr Markos also seeks to explain his delay by saying that he was hoping the situation concerning Nine’s contractual circumstances (especially weekend sport coverage) would change and that Nine would have work available for him to perform.

[97] This is not a convincing explanation for the delay. If Mr Markos wished to challenge the proposition that Nine had lost contractual rights to cover certain sporting events in South Australia then this assertion by Nine was known to him at least as a result of the conversation be had with Mr Schubert on 17 October 2018.

[98] Given that an unfair dismissal claim litigates the circumstances applying at the time of dismissal and whether the employer had a valid reason for dismissal at that point in time, it is not reasonable (given the statutory time frame) for a dismissed employee to wait until some possible or contingent future event occurs before filing an unfair dismissal claim.

[99] In his evidence, Mr Markos seeks to challenge the merits of his dismissal on the basis that he disputes Nine’s assertion that changes in technology justified a reduced level of demand for Links Operators from the casual pool. I accept that Mr Markos had no knowledge of this assertion until he read Nine’s response to his application, and the witness statements of Mr Dyson and Mr Schubert. Whether this was a reason for dismissal at the time of dismissal, and whether it is objectively able to be substantiated relates to the merits of the application. If Mr Markos considered himself to have been wronged by reference to the decision that was made in October 2018 and what he was told at that time, this additional factor (whether known or not known to him) did not preclude him from filing an application on the grounds he advanced when he ultimately did so.

[100] Finally, Mr Markos also seeks to challenge his dismissal on the ground that he claims another casual employee was employed to work from the casual pool in lieu of the work he performed and that employing another casual was inconsistent with the proposition that technological change reduced the need for engaging Links Operators.

[101] This is not a reasonable explanation for the delay. The employee Mr Markos refers to appears to have been employed by Nine in or around May 2018 27, whilst Mr Markos was employed and actively rostered. To the extent that Mr Markos believes that work given to this other employee was work he should have been offered in preference or was at odds with Nine’s claims about technology, these propositions could have been advanced well prior to 16 September 2019.

[102] Overall, and notwithstanding some contribution to his confused state by Nine, I conclude that the reasons advanced by Mr Markos for the 312 day delay in filing his application are not convincing.

[103] This conclusion weighs against a finding of exceptional circumstances.

Awareness of the dismissal taking effect (section 394(3)(b))

[104] Mr Markos was aware from 17 October 2018 that Nine could not see any shifts for him in the foreseeable future. This was advised by Mr Schubert in their telephone call on that day.

[105] This was repeated by Mr Schubert on at least half a dozen occasions over the following four months, including one in person when Mr Schubert advised that “nothing had changed”.

[106] Although I have found that Nine can be fairly criticised for confusing Mr Markos about his status as a member (or not) of the casual pool there was no lack of clarity about the fact that he was not being offered any work, either in the weeks after 17 October 2018 or in the months that followed.

[107] Whilst not expressly advised that he was dismissed or not being actively considered for work from the casual pool, I conclude that Mr Markos was aware from at least the end of the first period of delay when both Nine and Mr Markos ceased contact that active employment had concluded at Nine’s initiative even though he believed that, in some technical sense, he remained a member of the casual pool.

[108] I take into account that a casual employee in a pool of casuals who has no certainty about when they may be next rostered may not reasonably apprehend that they have been dismissed until such time as it is evident that the pattern of rostering to which they had become accustomed is no longer being implemented. In the words of Mr Markos, “it took some time for me to realise I had been unfairly dismissed”. 28

[109] However, it was not reasonable for him to take eleven months before coming to this awareness and litigating his grievance. The facts were well established by the end of the first period of delay. A failure by an employer to roster a casual employee any hours is different from a failure to roster a previously worked level or pattern of hours. Not being rostered at all is a fact that creates, in an objective sense, a heightened awareness of not being employed than a gradual erosion of a previously worked roster pattern. For 343 continuous days since he last worked a shift on 7 October 2018 Mr Markos had not been rostered any hours, a fact that was known to him during each of those 49 weeks.

[110] Against this, Nine was not fully transparent. It was truthful in telling Mr Markos that it could see no future shifts for him; but having earlier told him that he remained in the pool of casual employees it did not then tell him that he was not being actively considered for work from that pool.

[111] In this matter, these considerations counterbalance and tend to have a neutral impact in considering whether exceptional circumstances exist.

Action taken to dispute dismissal (section 394(3)(c))

[112] Mr Markos put Nine on notice during the first period of delay that he was still seeking out work as a Links Operator from the casual pool.

[113] In this sense, he was taking action to keep pressure on Nine to keep him employed.

[114] However, in none of the sporadic conversations with Mr Schubert during the first period of delay did Mr Markos dispute the position which Mr Schubert had advised on 17 October 2018 that contractual changes to sporting coverage made it unlikely that he would be offered future shifts.

[115] This notwithstanding, given the failure by Nine to be clear to Mr Markos about the decision it had taken to not, in any active sense, consider him for future employment (and the confusing impression this left on Mr Markos that he was still a member of the casual pool) I consider that Nine was, during the first period of delay, put on notice that Mr Markos was concerned that he was not being offered work, and in this sense inferentially disputing his dismissal.

[116] However, Mr Markos failed to register contact with Nine during the second period of delay or expressly state his dissatisfaction with not being offered work. He took no action to dispute the dismissal until he filed the proceedings.

[117] The action Mr Markos took during the first period of delay, but his inaction during the second period of delay are, to some extent, counterbalancing considerations.

[118] In the circumstances of this matter, this consideration weighs marginally in favour of a finding of exceptional circumstances given the confusing impression Nine’s initial conduct (and its subsequent omissions) conveyed to Mr Markos.

Prejudice to the employer (section 394(3)(d))

[119] As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances.

[120] Mr Markos’s application seeks to litigate events that occurred almost a year prior. Although the Nine Network is a large business with resources to manage historic litigation, the considerable length of time creates potential prejudice in gathering evidence and the recall of events by witnesses.

[121] However, not all evidence will need to be heard afresh. I have been able to make findings of fact, with some difficulty, based on the evidence advanced concerning these jurisdictional matters. It is possible that the Commission will be similarly able to navigate these difficulties in a merits hearing, though the further lapse of time and the potential for other witnesses to be called may magnify this difficulty.

[122] Further, it is a principle well established by the Commission that the mere absence of prejudice is an insufficient basis to grant an extension. 29

[123] In the circumstances of this matter, this consideration is a neutral factor.

Merits of the Application (section 394(3)(e))

[124] Determining the merits of this matter would involve factual matters particularly concerning sports contracts and coverage by Nine, the composition and usage of its permanent and casual employees performing the work of a Links Operator, changes to technology relating to outside broadcasts and the skill set of Mr Markos compared to other employees in the casual pool.

[125] I have received some of this evidence, but not all. It has not yet been tested. Mr Markos’s case is not hopeless given that Nine appears to be relying on some factors (such as technology and skill set) to support its reason for not offering him work beyond the reason it communicated at the time of dismissal (the loss of sports contracts). However, if those additional reasons were objectively supported by evidence, Nine’s case may have some prospects of success although procedural fairness issues may still arise.

[126] Not having delved deeply into these matters, I am unable to draw any conclusion about the strength of each case.

[127] In addition, the matter would only proceed to a merits hearing if I determine the minimum employment period issue in the Applicant’s favour. In light of these reasons, that question remains undetermined.

[128] In the circumstances of this matter, this consideration is a neutral factor.

Fairness between persons in similar position (section 394(f))

[129] No evidence or submissions from Mr Markos or the Nine Network raise issues of fairness with and between other persons.

[130] In the circumstances of this matter, this is not a relevant factor.

Conclusion on extension of time

[131] Mr Markos has an understandable grievance about no longer working for the Nine Network. For 49 weeks he was in an employment twilight zone, where he was led to believe that he remained on the books as a casual but was then not offered any shifts. Nine was not fully candid with him about the fact that he was not under active consideration for employment from the casual pool during this period. However, this was a fact that should have become evident as time passed. From as early as October 2018 Nine sent mixed messages by telling Mr Markos on 7 October 2018 that he was still on the books and not to worry, but then telling him on 17 October 2018 that it could not see shifts for him in the foreseeable future.

[132] Whilst this was poor human resource practices by an established business and weighs somewhat towards a finding of exceptional circumstances because Nine’s conduct contributed, at the very least, to a state of confusion in the mind of Mr Markos, it is not a determinative consideration. All factors need to be weighed including the length of delay and Mr Markos’s conduct especially during the second period of delay.

[133] The delay in lodgement of 312 days is very substantial particularly having regard to the 21 day statutory time limit.

[134] After sporadically informing Nine during the four months after his dismissal that he was still available for work, Mr Markos then took no action over the following seven months to express his availability for work, ascertain his status as an employee or protest his dismissal or failure to be rostered for work.

[135] I have found that Mr Markos was under a misapprehension that he was still a member of the casual pool of Links Operators and that Nine contributed to this confusion by failing to advise him that he was not under active consideration for work. However, he had been told by the Respondent Employer as early as 17 October 2018 that it could not see any future shifts for him, and that this was the repeated message he received. I have concluded that the reasons for delay in filing this application, particularly having regard to the second period of delay, are unconvincing.

[136] Taking the other factors in section 394(3) of the FW Act into account, they are largely neutral or counterbalancing in nature. None provide a basis on which to positively conclude that exceptional circumstances exist.

[137] Mr Markos’s application for relief under section 394 of the FW Act is out of time by a substantial period. The circumstances for not filing this application within the statutory time frame are not exceptional. I decline to extend the period for lodgement.

Was Mr Markos protected from unfair dismissal?

[138] As the application by Mr Markos has not been filed within the time prescribed by the FW Act and as that time has not been extended, I am not required to determine the third jurisdictional issue whether his employment as a casual employee was regular and systematic within the meaning of section 384 of the FW Act (and whether he had a reasonable expectation of continuing employment on that basis).

[139] However, in considering whether Mr Markos was dismissed I have made certain findings relevant to (but not necessarily determinative of) that question.

Conclusion

[140] On the first jurisdictional issue, I conclude that Mr Markos was dismissed by the Nine Network and that his dismissal took effect on 17 October 2018.

[141] On the second jurisdictional issue, the application filed by Mr Markos is 312 days out of time. I conclude that the circumstances for the delay are not exceptional and that the period for making the application has not been extended.

[142] It is unnecessary to determine the third jurisdictional issue.

[143] As the application is out of time and as the time for lodgement has not been extended the application is dismissed. An order to that effect is issued in conjunction with the publication of this decision.

DEPUTY PRESIDENT

Appearances:

C. Markos and S. Psevdos, for the Applicant

M. Cassimatis, K. McGuren, with permission and P. Gounder, for the Respondent

Hearing details:

2019.

Adelaide; by telephone.

13 December.

Printed by authority of the Commonwealth Government Printer

<PR715734>

 1 Nine is not a small business employer within the meaning of section 383 FW Act

 2   Directions 15 November 2019

 3 R1 Attachment A

 4   Audio transcript Mr Schubert 2h 07m

 5 R1 Attachment B

 6 R1 Attachment B

 7 R1 paragraph 6; R1 Attachment B

 8   Audio transcript Mr Schubert 2h 02m; Mr Dyson 1hr 13m

 9   Section 385 (a)

 10   Audio transcript Mr Markos 48m

 11 R3 paragraph 5

 12 R3 paragraph 6

 13 R1 Attachment A

 14   Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [70]: “s 384(2)(a) gives a clear indication that casual employees who have been employed on a regular and systematic basis and during that service have had a reasonable expectation of continuing employment on a regular and systematic basis are intended to be included in the unfair dismissal scheme in Pt 3-2”

 15   Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [71]

 16  Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [72]: “the mere fact that an employer has decided not to offer a new contract of employment at the end of a time-limited contract which represents a genuine agreement by the parties that the employment relationship should come to an end not later than a specified date will not by itself constitute a termination at the initiative of the employer”

 17   Smith v Canning Division of General Practice[2009] AIRC 959

 18   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 19   Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

 20   [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]

 21   [2019] FWCFB 2384 at [16] – [20]

 22   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]

 23   Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288

 24   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FrWCFB 2149

 25 F2 16 September 2019 paragraph 1.5

 26   A2 paragraph 3

 27   Audio transcript Mr Dyson 1hr 39m; R2 paragraph 2

 28   Mr Markos, Written Submissions on Extension of Time

 29 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300