Drazen Knezevic v CSL Behring T/A CSL Limited

[2014] FWC 3424

[2014] FWC 3424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Drazen Knezevic
v
CSL Behring T/A CSL Limited
(C2014/3829)

COMMISSIONER WILSON MELBOURNE, 23 MAY 2014

Application to deal with contraventions involving dismissal - jurisdictional objection - whether extension of time should be granted

Introduction

[1] Mr Drazen Knezevic filed an application for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Knezevic’s application relates to the termination of his employment by CSL Limited, trading as CSL Behring, on 12 March 2014, and was received by the Commission on 4 April 2014. The date of termination of Mr Knezevic’s employment is verified by material provided both within the application and CSL Behring’s response.

[2] Section 366 of the Act provides that an application under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. On the basis that Mr Knezevic’s employment was terminated on 12 March 2014, his application would need to have been made to the Commission no later than Wednesday 2 April 2014 in order for it to be within time. Since the application was made on 4 April 2014 Mr Knezevic’s application is two days out of time.

[3] A conference of the parties pursuant to s.368 of the Act has not been held, since CSL Behring objected to the continuation of the application arguing it was made after the period allowed for in the Act, and requested the determination of the extension of time issue before the conduct of a conference. As a result of this advice from CSL Behring, I issued Directions to the parties requiring that each file and serve material relevant to the question of an extension of time on or before 5 May 2014 and to advise by that date whether either party wanted a hearing on the question (with the parties being advised by me that in the absence of such a request, the extension of time issue would be dealt with by me on the papers).

[4] Mr Knezevic provided material to the Commission on 1 and 19 May 2014, however did not request a hearing.

[5] A further email was provided by Mr Knezevic to the Commission on 7 May 2014, however it was marked private and confidential and its contents requested that it be treated as such. As result, and since it does contain some private material, the correspondence has not been provided to the Respondent and I have not relied upon any part of it in forming my decision in this matter. The 7 May correspondence does not request a hearing of the Commission on this matter.

[6] Even though the 19 May 2014 correspondence from Mr Knezevic was received after the date directed for the provision of submissions and witness material, I have had regard to its content. While CSL Behring filed submissions and a witness statement on 5 May, it did not request a hearing.

[7] For the reasons set out below, I refuse Mr Knezevic’s application for an extension of time for the making of a general protections application.

Relevant background

[8] Mr Knezevic commenced employment with CSL Behring as a Plasma Fractionation Operator in June 2003, a position which he appears to have continued to hold throughout his employment.

[9] The circumstances of CSL Behring terminating Mr Knezevic’s employment include allegations of serious misconduct, which were set out in a letter to him dated 5 March 2014. The allegations are lengthy and not well summarised, however they show the company putting him on notice of at least three significant allegations namely;

• breaching an undertaking that the Applicant would not directly approach the company’s CEO about concerns he held about the company’s operations;



• breaching company policies that would require the Applicant to act in an appropriate manner;



• making unsubstantiated allegations of wrongdoing on the part of CSL Behring or its managers, which the company views as constituting “a threat to CSL or an attempt to blackmail the same”.

[10] The termination letter sent to Mr Knezevic on 12 March 2014 shows CSL Behring was unpersuaded by Mr Knezevic’s responses to the allegations given by him in a meeting on 11 March 2014. While the CSL Behring termination letter views Mr Knezevic as being “unwilling to properly participate to address each allegation” put in the meeting, it summarises a series of responses from the Applicant which, at the least, are a refuting of the company’s allegations. The letter indicates that CSL Behring did not consider Mr Knezevic’s explanation was reasonable or acceptable in any way, and that his employment would be terminated for reason of serious misconduct.

[11] Mr Knezevic’s general protections application to the Fair Work Commission does not clearly specify either the alleged contravention on the part of CSL Behring or the remedy he is seeking. Attached to the application are three letters. The first is the letter from CSL Behring of 5 March 2014 setting out the allegations it made about his behaviour and the second is the letter of termination dated 12 March 2014. The third letter is addressed to the Fair Work Commission and is signed 3 April 2014. After indicating the Applicant’s personal situation it states;

“Considering and taking into account circumstances I am asking for a further period of time to be allowed for the Application of Unfair Dismissal. Thank you for your time, consideration and understanding!”

[12] The above refers to an “Application of Unfair Dismissal” which this application is not. It may be that the Applicant intended to make an application for an unfair dismissal remedy, however that is not indicated in his submissions or explained as a reason for delay in making this application.

[13] As referred to above, on 1 and 19 May 2014 the Applicant wrote to the Commission following its Directions about the need to address the question of whether an extension of time should be allowed for the making of his application. These are lengthy and repetitive documents and not easily summarised, however they indicate the following;

• 1 May 2014

• The Applicant is devastated by his termination;



• He believes he was targeted after taking a union representative role in the EBA negotiations in 2012, however gives no particulars as to how this may have occurred or whether it is a factor in his termination by CSL Behring;



• Since dismissal, finding a new job has been his main priority and in the meantime his health has suffered;



• His application to the Commission is an opportunity for the company to show fairness and to work in accordance with its Code of Responsible Business Practice and Corporate Responsibility;



• The correspondence gives no particulars about the adverse action taken by CSL Behring against the Applicant or how any such behaviour breached the Fair Work Act 2009. The correspondence also does not address the reason why the general protections application made by Mr Knezevic was lodged out of time.

• 19 May 2014

• These submissions are provided in response to the Respondent’s material filed on 5 May 2014;



• The submissions accuse the Respondent of providing misleading and untruthful information to the Commission in its material;



• It refers to material found in the Respondent’s Code of Responsible Business Practice in Corporate Responsibility;



• The submissions refer to statements by the company’s new CEO which, it is said, was disrespectful of the Applicant both in his capacity as an employee and as a shareholder;



• The Applicant regards the unjustified threats of dismissal he was subject to as being bullying within the terms of CSL’s policies;



• The applicant regards parts of the witness statement filed on behalf the respondent by Adam Williams (human resources director, CSL Ltd) as being untruthful and insulting and thereby in breach of the company’s policies;



• The correspondence gives no particulars about the adverse action taken by CSL Behring against the Applicant or how any such behaviour breached the Fair Work Act 2009. The correspondence also does not address the reason why the general protections application made by Mr Knezevic was lodged out of time.

Legislative scheme

[14] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:

366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person 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 person and other persons in a like position.

[15] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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”.    1

Consideration

[16] I turn to consider each of the criteria set out in subsection 366(2) of the Act.

[17] For the reason that a letter to the Fair Work Commission was filed at the same time as the application itself and that letter sought “a further period of time to be allowed for the Application of Unfair Dismissal” (sic), I infer that Mr Knezevic was aware at the time he made the application that it was lodged outside of the statutory period for the making of an application.

[18] As I have referred to already, the obligation of the Act cast on applicants at the time of making an application is that they must make it within 21 days after the dismissal took effect unless the Commission allows a further period after being satisfied that there are exceptional circumstances.

[19] Mr Knezevic’s application was filed on 4 April 2014, two days out of time, and so I turn to consider whether I am satisfied there are exceptional circumstances that would lead to allowing a further period of time for the making of an application.

[20] Firstly, I consider the criterion in s.366(2)(a) which concerns the reason for the delay.

[21] Mr Knezevic does not advance a reason as to why his general protections application was filed out of time. As a result, I am unable to discern with any precision the reasons as to why Mr Knezevic failed to file his application within the 21 days allowed for in the Act. While his material refers to him being distressed or tired or exhausted, the material does not expressly link these factors to the application being lodged when it was. I consider this factor weighs against a finding there are exceptional reasons for the grant of a further period for the making of an application.

[22] In relation to s.366(2)(b), which requires me to consider whether or not Mr Knezevic has taken any action to dispute his dismissal, the material before me indicates that at least at the time of his termination of employment and subsequently, as evidenced through the material he has filed on the dates referred to, Mr Knezevic considered CSL Behring to have no proper reason to terminate him and that in effect CSL Behring was terminating him as a result of being a whistleblower. Notwithstanding this situation, the approach taken by the Fair Work Commission in relation to the statutory consideration in s.366(2)(b) is that set out in Brodie-Hanns v MTV Publishing Limited 2 in which it was said that one of the factors which will bear upon the granting an extension of time is;

“2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.” 3

[23] In the case before him, Marshall J considered the following about this particular factor;

“Other action taken by applicant

The other action taken by the applicant left the respondent in no doubt that its decision to terminate her employment was in active dispute up to a fortnight before she filed her application under s 170EA of the Act. However, the context of that other action (apart from her initial approach to the respondent to reconsider its decision) was completely in the nature of her pursuit of an alternative avenue of redress to the one provided for by the Act. Whilst ordinarily the taking of steps designed to challenge the termination may assist in the attaining of an extension of time, I believe, in the instant circumstances, that such a factor is neutral.” 4

[24] A similar situation arises here. There is no evidence before me that would indicate there is a demonstrated or concerted effort on the part of the Applicant to question his dismissal between the date on which he was dismissed and the date on which the general protections application was made. I consider this factor to be neutral, in that the facts in this case assist neither the Applicant or the Respondent.

[25] The statutory consideration of prejudice to the employer is dealt with in s.366(2)(c) of the Act and is a reference both to the prejudice of having to respond to the claim itself as well as any further prejudice which may have accrued as a result of the delay itself. CSL Behring acknowledges it would not suffer significant prejudice should the extension of time be granted, beyond being required to respond to the application. 5 As a result, I also consider this to be a neutral factor in my consideration of the granting of an extension of time.

[26] Section 366(2)(d) requires a consideration of the merits of the application made by Mr Knezevic. The merits of the application are not apparent on the basis of the material provided to date. The Applicant has so far failed to connect his circumstances with the protections set out within the Act.

[27] CSL Behring submits that Mr Knezevic’s claim “is not just unmeritorious, it is spurious; and does not disclose a prima facie case of a general protections breach” 6.

[28] The legislation establishes a general right of protection against adverse action taken because of particular prescribed reasons. Such protections include industrial activities, discrimination, temporary absence in relation to illness or injury or the benefit of provisions of the national employment standards or award or agreement.

[29] Mr Knezevic’s material advances several unformed allegations, the most formed of which are an allegation that he was victimised following a role in 2012 EBA negotiations (which possibly connects with s.346); and that he made complaints to and about the company, with the possibility that these may be connected to a workplace law or workplace instrument (s.341(1)). However these connections are not sufficiently made to have faith that the application would have some merit were it to proceed.

[30] CSL Behring put forward a detailed rebuttal of the possible connection between Mr Knezevic’s role as a union delegate and the complaint about him that was subsequently agitated. The company argues that the warnings issued to Mr Knezevic as a result were given due to his repeated conduct breaches and provides detail on this subject. In relation to Mr Knezevic’s potential allegation of being treated adversely due to making a complaint against certain individuals or the company itself, CSL Behring also responds in detail, and argues that it was instituting a disciplinary process against the Applicant, again because of his conduct.

[31] Having considered the material provided by Mr Knezevic to date, I do not consider he would be able to more compellingly make the required connection between his obvious complaints about CSL Behring and the requirements of the Act if the matter were permitted to proceed.

[32] On the basis of the material filed to date it is unlikely that the application would have a reasonable prospect of success if it were to continue. Consideration of this criterion weighs against the Applicant, and in particular in my consideration of whether there are exceptional reasons for the grant of a further period for the making of an application.

[33] I am also required by s.366(2)(e) of the Act to take into account the subject of fairness as between Mr Knezevic “and other persons in a like position”. This subsection invites a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.365, and, relevantly whether it would be fair to that class of person in the event that Mr Knezevic’s application was permitted to be filed late. After considering the material before me, I am of the view that this criterion falls against Mr Knezevic for the reason that there is a firm expectation upon late applicants to address the criteria of s.366 and in particular to show there are exceptional reasons for allowing further time by providing cogent reasons as to why their application is out of time and to connect the basis and merits of their application with the statutory criteria. To extend to Mr Knezevic the opportunity to make a late application without having adequately addressed the other criteria within the section would be unfair to other applicants in a like position that may well have their application dismissed without the grant of a further time for the making of the application.

[34] As a result of this analysis, I am not satisfied there are exceptional circumstances in the manner envisaged by s.366 of the Act for the grant of a further period to Mr Knezevic for the making of an application under s.365.

[35] An Order dismissing Mr Knezevic’s application is issued at the same time as this decision.

COMMISSIONER

 1   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 2 (1995) 67 IR 298

 3   Ibid, at p 299

 4   Ibid

 5   Respondent's Outline of Submissions, para 31

 6   Ibid, para 33

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