Michael De Zylva v Serco Australia Pty Ltd
[2022] FWC 1303
•3 June 2022
| [2022] FWC 1303 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Michael De Zylva
v
Serco Australia Pty Ltd
(C2022/965)
| COMMISSIONER YILMAZ | MELBOURNE, 3 June 2022 |
Application to deal with contraventions involving dismissal – application made outside the prescribed 21 days – whether there are exceptional circumstances – extension of time denied.
On 6 February 2022, Mr Michael de Zylva lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Serco Australia Pty Ltd (Serco). Mr de Zylva commenced employment on 31 January 2010 and his dismissal took effect 15 December 2021.
Prior to filing this general protections involving dismissal application, Mr de Zylva filed an application for an order to stop bullying on 29 November 2021 which was subsequently discontinued on 30 March 2022. In this general protections application, Mr de Zylva contends that bullying and discrimination was part of a pre-determined exit strategy, and the notification on 26 November 2021, where he was informed by text to not attend work was in his opinion the commencement of an unfair dismissal and discrimination process concluding with the dismissal letter on 15 December 2021.[1]
Mr de Zylva was employed as full-time Transport and Escort Officer with Serco Justice and Immigration. Serco introduced a COVID-19 policy requiring staff to be vaccinated with the first dose due by 26 November 2021. Mr de Zylva did not comply with the policy so was stood down from 26 November 2021.
Serco submit that having performed a risk assessment and consultation with employees, it implemented a COVID-19 vaccination policy for persons, including Detainee Service Officers, which concerned the work performed by Mr de Zylva. Serco submits it communicated its policy and directed compliance with the policy during October, November and December 2021 and as Mr de Zylva did not provide proof of compliance with the policy nor any evidence of exemption. Mr de Zylva’s employment was ultimately dismissed on the basis of non-compliance with lawful and reasonable directions, and that he was unable to perform the inherent requirements of the job. The dismissal on 15 December 2021 included 5 weeks’ pay in lieu of notice.
Mr de Zylva contends that the policy is discriminatory and in breach of Commonwealth and “subsequent laws” including the Australian Constitution, the Qld Human Rights Act 2019, the Covid Emergency Act 2020, the Public Health Act 2015, the Biosecurity Act 2015, the Crimes Act 1914, the Bill of Rights 1688, the Australian Immunisation Handbook and the Privacy Amendment Act 2020.
Mr de Zylva was supported and represented by his son and the Respondent sought leave to be legally represented which was denied.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 32 days after the 21-day statutory time limit.
Applicant’s submissions
Mr de Zylva submits that his dismissal is in contravention of the following provisions of the Act:[2]
Division 3 - Workplace Rights
· S.340 Protection
· S.343 Coercion
· S.344 Undue influence or pressure
Division 4 – Industrial Activities
· S.346 Protection
· S.348 Coercion
Division 5 – Other Activities
· S.351 Discrimination for age, physical/ mental, religion, political
· S.352 Temporary Absence – Illness of injury
Mr de Zylva is seeking justice, and this involves an apology, rectification of the process, reinstatement of his entitlements and back pay with a reinstatement subject to an individual flexibility agreement.[3]
Respondent’s submissions
Serco submits that it dismissed Mr de Zylva because of his failure to comply with a lawful and reasonable direction to provide evidence of his first COVID-19 vaccination by 26 November 2021. As a result, he was not able to perform the inherent requirements of the role.
It further submits that the application is without merit and the Commission should dismiss the application.
Consideration
General protections applications involving dismissal must be made within 21 days from the date an applicant’s dismissal takes effect.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e) Fairness between the person and other persons in a like position
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[4] where it was held that:
“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 regular occurrence, even though it can be a on 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.”[5]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission on 6 February 2022, 32 days late. Mr de Zylva was aware that his dismissal took effect on 15 December 2021, and from his submissions he was aware of the 21-day timeframe for applications to be lodged with the Commission.
The reason for the delay that Mr de Zylva offers is that there was a high demand for legal advice prior to Christmas and firms closed until the first week of January 2022. He tendered an extract from the Attorney-General’s Department which states that there is a high number of calls and emails which means that response times may be longer than usual.[6] He submits that an application to the Workplace Advice Service (WAS) was made and the hour-long consultation did not take place until 1 February 2022.[7] He further submits that seven suburban law firms were contacted but was informed that he was unlikely to be contacted within the required timeframe because of Christmas and COVID-19.[8] An Optus report of logged calls dated 21 and 22 December 2021 match to the numbers to the website pictures provided as evidence of attempts to obtain legal advice. It can be seen that contact was made to four firms in Clayton, Springvale and Dandenong on 21 December 2021 from 1.55pm with two of those calls from 5.00pm. On 22 December 2021, three calls were made to firms in Dandenong commencing at 8.54 am. There is no evidence of contact made from the date of dismissal or prior to 5 January 2022, the 21-day deadline for an application.
However, during the hearing, Mr de Zylva submitted that he contacted the WAS on 16 December 2021 in relation to his dismissal. Making this contact requires access to the Commission’s website to lodge a form. Relevantly, the website provides the following information:
“Please note:
· This service is entirely separate from making a formal application to the Commission.
· You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.
· If you need help sooner, or are not eligible, other legal help is available.
The website interface provides users the following options to proceed with a request for legal advice or submit an application form with the Commission:
“Eligibility check
I want to
· make a request for legal advice
· lodge an application with the Commission”.
The website provides user friendly information on dismissal applications including unfair dismissal and general protections. Numerous reminders of the 21-day limit to file applications are found on the website as can be seen above when accessing the WAS application form. This evidence is contrary to the statement made by Mr de Zylva that he did not look at the general protections application form until he filed it on 6 February 2022 and then realised the 21-day limit to file applications.
Evidence of contact with the WAS was tendered dated 24 and 25 February 2022. This contact from the WAS took place after the initial 1-hour consultation on 1 February 2022. Relevantly the email from the Commission, which is a standard form of communication on both 24 and 25 February contained the following:
“Dear Michael Rowland De Zylva,
Thank you for requesting legal advice through the Workplace Advice Service.
We receive a large number of requests and rely on available appointments from our partner organisations who volunteer their services.
Unfortunately we are unable to find an appointment for you due to high demand.
What can you do next?
You can contact another organisation that may be able to provide support through the link provided below:
Alternative Organisations
A request for legal help from the Workplace Advice Service is not an application to the Commission. Some applications, like dismissal applications, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.
If you need more information about lodging a Fair Work Commission application, please call our Helpline on 1300 799 675 or on our website through the link provided below:
Commission Forms
Thank you for interest in the Workplace Advice Service.
Kind regards,
Workplace Advice Service”
The email contains clear information that completing the form to access the WAS is not an application to the Commission, and the 21-day limit is reinforced for dismissal applications. A link to the Commissions forms is provided in the email to assist applicants to lodge their application. No further evidence was tendered in relation to delay of access to the WAS from the date of dismissal until the appointment on 1 February 2022, other than the submission that the request to access the WAS was made on 16 December 2021.
Mr de Zylva submits that a conciliation conference was scheduled for 21 December 2021 in respect to his bullying application. However, due to his dismissal on 15 December 2021, he requested an adjournment to obtain legal advice.[9] Email chains sent through from Mr de Zylva show that a conciliation conference was had in regard the bullying application on 3 and 14 February 2022 with some discussion or negotiations to settle. From the email chain it is also apparent that Mr de Zylva did not respond to the Commission’s inquiry of 22 February 2022 whether he intended to pursue his application until 10 March 2022. At this stage in March Mr de Zylva had on foot both the general protections and the bullying applications.
During submissions, Mr de Zylva contends that part of the reason for the delay was that he was informed that he could not have two applications with the Commission. There is no evidence to support this contention, however, dismissal applications forms do remind applicants that they need to decide which dismissal claim they intend to pursue if more than one is made. The bullying application is not a dismissal application, Mr de Zylva made the application during his employment for the purpose of obtaining a stop bullying order. By filing a general protections application while the bullying matter was still on foot is evidence that this understanding did not justify the delay in the general protections application.
I am satisfied that Mr de Zylva was aware that there was a 21-day time limit to file a general protections application. The reason that legal advice through law firms caused a delay in my opinion is not an exceptional explanation. Further, the evidence shows that even if Mr de Zylva felt it necessary to obtain advice apart from the WAS, no attempt was made except for 21 and 22 December 2021. Some explanation was given for the delay, but the whole of the delay was not accounted for and this does not weigh in Mr de Zylva’s favour. Further, explanations need to be acceptable or reasonable, and the reasons provided do not satisfy this requirement.
I also observe that the form that was ultimately filed on 6 February 2022, does not indicate that any legal advice contributed to its completion, and I have no evidence before me that provides any credible reasons why an application could not be made on time.
There must be a credible reason for the delay.[10] I do not agree that the reasons for lateness of the application are credible reasons, they cannot be accepted as being exceptional, unusual, out of the ordinary, uncommon or special. I do not agree with Mr de Zylva that the Commission owes him a duty of care, he disagreed with the reasons behind the Respondent’s policy and knew the consequence was dismissal; he was on notice for some time that he would be dismissed if he elected to not comply with the policy. He accessed the Commission’s bullying jurisdiction, which shows he was capable of accessing and reading the Commission’s website. I am also satisfied that he was aware of the time limit well before the 21 days and still filed a late application. The bar for an extension of time is high, it is not a discretion to be given lightly and in this instance the reasons for the delay provided do not weigh in Mr de Zylva’s favour. I now consider the balance of the provisions in s. 366 (2).
Steps taken to dispute the termination
Mr de Zylva submits that he wrote to the Commission and contacted multiple legal firms to obtain legal advice as soon as he was dismissed.
Serco submits that no steps were taken to dispute the dismissal directly with the Respondent.
At the time of the dismissal Mr de Zylva had on foot a bullying application which was not discontinued until 30 March 2022. Serco advised the Commission in the bullying matter that it intended to raise a jurisdictional objection in relation to the application on the basis that Mr de Zylva was no longer a worker. Mr de Zylva’s request for an adjournment of the conference to seek legal advice is not sufficient to put on notice the Respondent that he intends to challenge his dismissal as a general protections application.
It is not disputed that Serco did not respond to three separate communications to them where Mr de Zylva sought to know who within Serco was authorised to act for Serco, enforce the policy or act as the responsible person. This correspondence to the Senior Legal Counsel- Employment in my opinion is not of substance nor placed the Respondent on notice for further proceedings, nor is relevant to the matter of extension of time.
Prior to the dismissal Mr de Zylva’s disagreement with Serco’s decision to implement a COVID vaccine policy is not in dispute, but no correspondence since the dismissal from Mr de Zylva put the Respondent on notice that the dismissal would be disputed as general protections claim.
Consequently, this consideration does not weigh in Mr de Zylva’s favour, at best it is a neutral consideration.
Prejudice to the employer
Mr de Zylva submits that the dismissal was possibly strategic given the dismissal in December 2021 meant that Serco would likely be aware that legal advice would be difficult to obtain because of the Christmas period and the effects of the COVID-19 pandemic.
Serco submit that to allow an extension of time, it would experience prejudice by having to expend resources, incur potential costs and experience inconvenience in defending a claim that it considers lacks merit.
While I accept that the Respondent may be disadvantaged and has experienced costs associated with the application, I do not accept that they are necessarily prejudiced because of the delay. However, the mere absence of prejudice is an insufficient basis to grant an extension. For these reasons, this consideration is neutral.
Merits of the application
Mr de Zylva contends that he was not consulted prior to the implementation of the COVID-19 policy and makes clear that he at no time consented to the directions arising from the policy.[11] Mr de Zylva contends that the directive as per the policy is not law, therefore not enforceable and by mandating a vaccination directive it constitutes bullying to undertake a medical procedure against his will. He further submits that a change to his position was a demotion and a form of bullying when he transferred to front of office in September 2021.
Mr de Zylva contends that the directive to comply with the policy is not a lawful direction and an extension of time will enable him to fight for what is just.[12]
Serco submit that the Mr de Zylva was dismissed due to his failure to comply with a lawful and reasonable direction to provide evidence of the first COVID-19 vaccine or a valid exemption by 26 November 2021. It denies the reasons relied on by Mr de Zylva in his general protections application and submits that the application is without merit. It submits that the reason for the dismissal was that an unvaccinated person could not perform the inherent requirements of the job, and as no evidence of vaccination was tendered, it had to be assumed that Mr de Zylva was not vaccinated nor had a valid exemption from the vaccination.
Having considered the short submissions on the matter of merit, I cannot conclude that Mr de Zylva has a meritorious application. No explanation was given concerning the relevance of the general protection provisions marked in the Form F3. Mr de Zylva alleges a contravention in respect to all of the general protections provisions bar sham arrangements. I observe that no evidence was tendered or substantive submissions made in relation to merit.
In response to the risks associated with the transmission of the COVID-19 virus, and its requirement to deliver quarantine and airport services to Australian Border Force, Serco introduced a policy requiring staff to be vaccinated or to provide proof of valid exemption from the vaccine. Mr de Zylva chose not to comply with the policy arguing amongst other points, that Serco acted unlawfully by breaching substantial laws including the Australian Constitution. Similar arguments have been advanced in other matters where employers have complied with government vaccination mandates, which have had no consequence on the outcome of the matter. I note that Serco provided limited detail as to the basis for their policy and did not rely on Government vaccination mandates for their policy directives. Despite this limited information, I understand that Mr de Zylva has concerns with the vaccine given his age, good health and personal views that the vaccine is an experimental drug. However, I consider his arguments against the lawfulness of the policy directives misplaced. Therefore, on balance I cannot consider this consideration to weigh in Mr de Zylva’s favour, but consider it neutral.
Fairness between the person and other persons in a like position
The purpose of this consideration is concerned with the consistent application of principles and relates to like matters or other employees of the Respondent. Relevantly, a Full Bench noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[13] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[14]
As neither party could refer me to any matters relevant to these proceedings, I find this consideration neutral.
Conclusion
In this instance, I must be satisfied that there are exceptional circumstances warranting an extension of time.
Having considered all of the evidence and submissions, on balance against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Mr M. De Zylva on his own behalf.
Mr S. De Zylva for the Applicant.
Ms L. Tran for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
16 May
[1] Applicant’s Form F8 at 1.2.
[2] Form F8 General protections application involving dismissal at 3.2.
[3] Ibid at 2.1
[4] [2011] FWAFB 975.
[5] Ibid at [13].
[6] Applicant’s additional submissions received on 11 May 2022.
[7] Applicant’s Form F8 at 1.4.
[8] Applicant’s outline of submissions at 1e and additional submissions on 13 May 2022.
[9] Applicant’s outline of submissions at 1d.
[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[11] Ibid at 3.1.
[12] Applicant’s submissions of 11 May 2022.
[13] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[14] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
Printed by authority of the Commonwealth Government Printer
<PR741991>
0
4
0