Oliver Petrov v The Salvation Army (NSW) Property Trust
[2022] FWC 1602
•1 July 2022
| [2022] FWC 1602 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Oliver Petrov
v
The Salvation Army (NSW) Property Trust
(U2022/4473)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 1 July 2022 |
Application for an unfair dismissal remedy – payment in lieu of notice – date dismissal took effect – extension of time – application late due to error – whether exceptional circumstances – application dismissed
Oliver Petrov (Mr Petrov or the applicant) has applied to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to a dismissal by The Salvation Army (NSW) Property Trust (Salvation Army, the respondent or the employer).
Mr Petrov’s application was filed on 16 April 2022.
The Salvation Army oppose the application. It raises a jurisdictional issue. It says that Mr Petrov’s application is out of time and time should not be extended.
There is a dispute over the date the dismissal took effect. Mr Petrov says it took effect on 11 April 2022, at the conclusion of a period of three weeks’ notice which was paid in lieu. The Salvation Army say that the dismissal took effect on 21 March 2022 being the day termination and notice of payment in lieu was advised.
If the Salvation Army is correct, the application is five days outside the statutory 21-day period for making unfair dismissal claims. In that circumstance Mr Petrov seeks an extension of time.
If Mr Petrov is correct, the application is within time.
This decision determines whether the application is within time and if not, whether an extension should be granted.
I issued directions on 10 June 2022.
I heard the jurisdictional issue by video conference on 17 June 2022.
Mr Petrov’s application was filed on his behalf by his wife. Subsequent to filing he engaged the services of an agent, Mr Rogers of Reignite Democracy Australia. I granted permission for Mr Petrov to be represented. Mr Rogers represented Mr Petrov at the hearing.
The Salvation Army was represented by an internal officer, Ms Hunt (Senior Workplace Relations Manager).
Mr Petrov and his wife, Mrs Snezhana Petrova, gave evidence.[1]
The facts, drawn from both oral and documentary evidence, are not in dispute.
Facts
I make the following findings.
The Salvation Army operates charitable and retail businesses.
Mr Petrov and his wife Mrs Petrova have lived in Australia for seven years. Each is able to converse and understand English, though it is not their language of birth. Neither has specialist knowledge of Australian industrial or legal systems.
Mr Petrov was employed for approximately five years by the Salvation Army. When dismissed, he was working as a picker and packer.
On 12 January 2022 the Salvation Army notified employees, including Mr Petrov, that it required employees to be fully vaccinated against the COVID-19 virus.
This requirement brought Mr Petrov into dispute with his employer. Mr Petrov did not wish to be vaccinated and considered it contrary to his conscience. He did not produce evidence to his employer of vaccination or a medical contraindication.
On 16 March 2022 the employer issued Mr Petrov a show cause letter as to “why your employment should not be terminated”.[2] The employer scheduled a show cause meeting for 21 March 2022.
Mr Petrov attended the meeting. At the meeting Mr Petrov told the employer that he considered its requirement that he be vaccinated to be wrong. Mr Petrov was advised that he was non-compliant with the employer’s vaccination procedure without reasonable cause. Mr Petrov was advised that his employment was terminated with three weeks’ notice to be paid in lieu. He was advised that he would receive a written letter of confirmation.
Mr Petrov left the meeting and did not work beyond that date.
Later that day (21 March 2022) Mr Petrov received, by email, a letter from the Salvation Army. It read:[3]
“21/03/2022
Private & Confidential
….
Dear Oliver,Termination of your employment due to non-compliance with COVID-19 Vaccination Procedure
We refer to our show cause letter to you dated 16/03/2022 in relation to our proposal to terminate your employment due to your failure to comply with the Salvation Army’s (TSA) COVID-19 Vaccination Procedure (Vaccination Procedure)
We also refer to
·Our meeting with you 21/03/2022
After considering your responses, we regret to advise you we are not satisfied that you have a valid medical or lawful basis for not complying with the Vaccination Procedure.
Accordingly, your employment is terminated by reason of your non-compliance with the Vaccination Procedure.
You are hereby provided with three weeks notice of termination of employment.
You will not be required to work out the notice period and you will receive payment in lieu of the notice period.
In addition to your entitlement to notice of termination of employment, you will be paid any accrued but unused annual leave.
Please contact Andre Classen to arrange the return of all TSA confidential information and property that is in your possession.
We thank you for your contributions to TSA and wish you the best in your future endeavours.
Yours faithfully
Andre Classen
Salvos Stores”
Mr Petrov, assisted by Mrs Petrova, took immediate action to become familiar with his rights to challenge the employer’s vaccination requirement and his dismissal.
At the time of dismissal and in the days that immediately followed Mr Petrov and Mrs Petrova knew, by reading the Commission web site and other sources of information, that he had the right to make an application for an unfair dismissal remedy.
Mr Petrov and Mrs Petrova also learned via this research that they were required to file an application within 21 days of the dismissal taking effect.
Mr Petrov, in consultation with his wife, formed the view that, as the Salvation Army had paid three weeks in lieu of notice, his dismissal did not take effect until 11 April 2022, being three weeks after being given notice (21 March 2022). Accordingly, they believed that the unfair dismissal application, which they intended to make, must be made within three weeks of 11 April 2022 but not earlier.
In forming this view, Mr Petrov and Mrs Petrova did not seek independent advice or contact the Commission.
When 11 April 2022 came around, Mrs Petrova (on behalf of her husband) accessed the unfair dismissal application form (F2) on the Commission’s web site. Over the next couple of days Mrs Petrova progressively populated the form. As she was also in the workforce, she decided to wait until the following weekend to check her work and satisfy herself that the application was in order.
On Saturday 16 April 2022, at 9.19pm, Mrs Petrova filed her husband’s unfair dismissal application by email.
It was only in the weeks following the filing of the application that Mr Petrov sought and obtained external assistance from Mr Rogers of Reignite Democracy Australia.
Submissions
Mr Petrov submits that his dismissal took effect when the three week notice period paid in lieu took effect (11 April 2022). As his application was filed on 16 April 2022, he submits that it is not out of time.
In the alternative, Mr Petrov submits that he filed five days late due to an honest mistake made by he and his wife over when his dismissal took effect. He submits that as neither he nor his wife have any specialist knowledge of Australian industrial or legal systems then that error is understandable and an acceptable reason for delay.
He says that the employer’s letter and the Commission web site are unclear on when a dismissal takes effect in circumstances where notice is paid in lieu.
He says that there is no disadvantage to the Salvation Army in granting an extension of time, and that he has a just case on merit. He says that he would be disadvantaged if his case was not able to proceed.
The Salvation Army submit that the application is five days out of time because, on established Commission authority, the dismissal took effect when Mr Petrov was notified on 21 March 2022.
The Salvation Army further submit that the circumstances are not exceptional. It submits that the mistake was made by Mr Petrov and his wife in a period when they could have, but did not take external advice. It says that there was nothing unclear in what the Salvation Army advised in its termination meeting or in its termination letter. It says that Mr Petrov knew that he had been dismissed from the day he left the Salvation Army worksite (21 March 2022).
The Salvation Army also submit that as it has had to dismiss other employees on similar grounds (non-compliance with vaccination requirements), then a bad precedent would be created that may lead to other claims if the Commission was to allow late applications.
Consideration
Section 394(3) of the FW Act provides:
“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.”
Is Mr Petrov’s application out of time?
The FW Act’s requirement is that an unfair dismissal application must be made within 21 days “after the dismissal took effect”.
Mr Petrov was told on 21 March 2022 that he was dismissed. The employer’s letter of confirmation sent and received that same day advised “your employment is terminated”. The use of the present tense “is” supports a conclusion that Mr Petrov’s employment ended that day. The employer’s letter also made it clear that Mr Petrov “will not be required to work out the notice period”. That was his last day of work.
The employer provided three weeks’ notice of termination and stated in the termination letter that “you will receive a payment in lieu of the notice period”.
The payment was made “in lieu” of the notice period. I conclude that the employer’s letter was clear and no contrary indication was given to Mr Petrov. In these circumstances, Mr Petrov was not an employee during the period he was paid in lieu because his dismissal had taken effect.
Mr Petrov’s case is not the first circumstance where this question has come before the Commission. The conclusion I have reached accords with past Court and Commission authority.[4] In Siagian v SANEL Pty Limited Wilcox CJ observed:[5]
“This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense. An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers' compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.”
Mr Petrov’s application is five days out of time. It requires an extension of time if it is to proceed.
Should an extension of time be granted?
The application can only proceed if the applicant can establish that “exceptional circumstances” exist within the meaning of s 394(3) of the FW Act.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[6]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant[7]. A decision whether to extend time under s 394(3) involves the exercise of a discretion[8].
I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[9]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[10]
I now consider each of the factors set out in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension although decisions of the Commission have referred to an acceptable or reasonable explanation.[11] The absence of an explanation for any part of the delay will usually weigh against an applicant. 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.[12]
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.[13]
The period of 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. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[14]
In this matter, the delay period is the five days from 12 to 16 April 2022 (inclusive).
The reason advanced by Mr Petrov is that whilst he intended to take unfair dismissal action against the Salvation Army from the time he was notified of his dismissal on 21 March 2022, he delayed doing so until after the three week period of notice (paid in lieu) expired and then filed an application five days later.
Essentially, Mr Petrov’s explanation for the delay boils down to two propositions.
Firstly, that if he was (as he was) wrong in believing the 21-day period commenced from 11 April 2022, it was an honest mistake.
Secondly, that he moved swiftly after 11 April 2022 to take action to file, and reasonably sought the assistance of his wife.
Mistake
There is no general rule that a dismissed employee making a mistake about the operation of the law means that their mistake is an acceptable reason for delay. Equally, the circumstances of mistaken conduct or a mistaken belief relating to the date a dismissal took effect are relevant to determining whether an acceptable reason for delay exists or is capable of rendering the circumstances exceptional.[15]
I find that Mr Petrov made a mistake. I also find that it was an honest mistake in the sense that Mr Petrov wanted to file an unfair dismissal claim from the moment he was dismissed and wanted to make a claim in the proper legal form and time frame.
Relevant also is that the mistake was not borne of anything said or done by the Salvation Army. Mr Petrov was not misled by his former employer. I have found that its correspondence was clear. The payment of three weeks in lieu of notice was just that. As I have found, the notice period he was entitled to was substituted by the payment and thus his dismissal took effect upon the giving of notice.
Nor is there any evidence before me that information on the Commission web site relied upon by Mr Petrov was misleading or unclear.
Ignorance of the law, whether it is the law that prescribes a time limit to file unfair dismissal claims or whether it is the law that regulates when a dismissal takes effect where a notice period is paid in lieu is not, of itself, an acceptable reason for delay.[16] Were it otherwise the statutory scheme imposing time limits would be compromised and a reverse incentive would exist for persons to not inform themselves of their legal rights and obligations.
I take into account that Mr Petrov was relying, in large measure on the assistance of his wife and that his mistake was hers and vice versa. I also take into account that Mr Petrov and Mrs Petrova have only lived in Australia for seven years and have no particular knowledge of domestic legal systems.
Those factors carry some weight but considered overall the mistake made by Mr Petrov is not an acceptable reason for delay. It was Mr Petrov’s obligation, given his conviction that he had been unfairly dismissed and his desire to sue his employer, to find out about the operation of domestic law. If Mr Petrov believed that his inexperience with Australian legal systems was to his disadvantage or that a payment of notice in lieu created confusion, he could have sought external advice or assistance from legal supports in the community. That he did not do; neither during in the delay period or earlier.
Action to file claim
In the five days of the delay period, Mr Petrov largely left it to Mrs Petrova to take the running in accessing the unfair dismissal application and populating the form.
His application could have been filed earlier but for the fact that Mrs Petrova decided to wait until the following weekend to have a further look at the work she had progressively undertaken during the week in populating the form. There is no evidence that Mr Petrov did anything other than allow his wife to advance his interests in making and lodging his application during that week, other than being kept informed. Whilst in that sense it was a team effort, the logistics were left to Mrs Petrova.
Whilst I take into account that Mrs Petrova was also in the workforce, I note that the day prior to filing was a public holiday (Good Friday) and thus the day of filing was not the first day of the weekend.
I find that the delay in this five day period 12 to 16 April 2022 was largely the result of the fact that Mrs Petrova and Mr Petrov believed he had plenty of time to file, when in fact he had none.
Mr Petrov, through the agency of his wife, acted with intent after 11 April 2022 to file the application but would have acted much more promptly in that week had he been or become aware that he was already out of time.
Considered overall, the lack of action to seek external advice to test the assumption on which Mr Petrov’s mistaken belief was founded does not weigh in favour of a finding of exceptional circumstances, but the action taken on his behalf relatively swiftly to prepare and file the claim after 11 April 2022 does weigh somewhat in favour.
Awareness of the dismissal taking effect (s 394(3)(b))
I have found that whilst the dismissal took effect on 21 March 2022 and Mr Petrov knew that he was dismissed when he left the business that day and why, he did not appreciate, due to ignorance on his and his wife’s part, that his dismissal had taken effect that day.
I have also found that Mr Petrov did not take steps prior to filing his late claim to seek external advice or to test the assumption on which his mistaken belief was founded.
In the circumstances, these are countervailing considerations leading to this being a neutral consideration.
Action taken to dispute dismissal (s 394(3)(c))
Once dismissed, Mr Petrov took no action to dispute his dismissal other than to seek the assistance of his wife in preparing and making his unfair dismissal claim.
However, at the time of dismissal, Mr Petrov informed the Salvation Army that he considered the reason for dismissal to be wrong and unjustified. In this sense, the Salvation Army could not have been surprised that Mr Petrov subsequently took legal action over his dismissal.
In the circumstances, these are countervailing considerations leading to this being a neutral consideration.
Prejudice to the employer (s 394(3)(d))
The Salvation Army point to the fact that if Mr Petrov’s application is allowed to proceed, it will have to defend late proceedings which involve cost and expense.
The nature of this prejudice to the employer is not unique.
However, the absence of prejudice would not itself be a reason to grant an extension.[17]
In these circumstances, this is a neutral consideration.
Merits (s 394(3)(e))
The dismissal concerns alleged non-compliance with a vaccination requirement introduced by the employer. It would appear that in this matter the requirement was introduced as a matter of policy and risk mitigation, not as a result of a government directive.
Whilst there is now considerable Commission authority in the unfair dismissal jurisdiction on dismissals related to vaccination mandates arising from government directions, I have not heard evidence concerning this employer’s approach to the issue and the manner in which Mr Petrov was required to comply, his level of engagement with other employees or the public, and the reasons (including what appears to be a religious belief or conscience) as to why he did not comply.
In these circumstances, it is not safe to express a provisional view on the merits.
In this matter, this is a neutral consideration.
Fairness between persons in similar position (s 394(f))
The Salvation Army submit that potential unfairness arises if, by extending time, other persons it has dismissed for non-compliance with vaccination requirements could also make late claims.
I do not agree.
Whether it is appropriate to grant an extension of time in other matters is a decision to be made in the context of each matter. There is no evidence before me that Mr Petrov’s application is some sort of test case or matter where others are awaiting the outcome before litigating.
This is a neutral factor.
Conclusion
In the context of a 21-day statutory time limit, the period of delay (five days), whilst not lengthy, is not insignificant.
The lack of action by Mr Petrov to seek external advice to test the assumption on which his mistaken belief was founded does not weigh in favour of a finding of exceptional circumstances, but the action taken by his wife on his behalf to prepare and file the claim after 11 April 2022 does weigh somewhat in favour.
All other factors are neutral or not relevant.
Ultimately this matter turns on the nature of the mistaken belief and the conduct of Mr Petrov prior to and during the delay period. Mr Petrov had a strong belief from the moment he was dismissed that his dismissal should be challenged but took no steps to independently or externally verify assumptions which he and his wife were making about his rights to take legal action. It turned out they made a wrong assumption that rendered his application out of time. They did not test that assumption nor give their mistake the chance to be corrected.
Considered overall and given that the test of exceptional circumstances is a “high hurdle” and Mr Petrov carries the onus of positively establishing that proposition, I am not satisfied, on balance, that the circumstances are exceptional.
There being no exceptional circumstances, the time for lodgement of application U2022/4473 cannot be extended.
Being out of time, the application must be dismissed.
An order[18] giving effect to this decision is issued in conjunction with its publication.
DEPUTY PRESIDENT
Appearances:
G Rogers, on behalf of, Oliver Petrov
O Hunt, for and on behalf of, The Salvation Army (NSW) Property Trust
Hearing details:
2022
Adelaide (by video)
17 June
[1] A1
[2] R2
[3] A2 and R1
[4] Siagian v SANEL Pty Limited [1994] IRCA 2; Georgiou v Transurban Ltd [2022] FWC 1240 at [26]; Patrone v Unique Muscle Pty Ltd[2022] FWC 319 at [8]
[5] [1994] IRCA 2
[6] Smith v Canning Division of General Practice[2009] AIRC 959
[7] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[8] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[9] [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[10] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[11] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
[13] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[14] 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] FWCFB 2149
[15] Mihajlovic v Lifeline Macarthur[2013] FWC 9804; Ayub v NSW Trains[2016] FWCFB 5500; Foyster v Bunnings Group Limited [2017] FWCFB 3923
[16] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30]; Linda Connor v Paul Kirk, Roberts & Co[2015] FWC 7335; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 – 300; Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975; Collins v Bunnings Group Limited[2016] FWC 7080
[17] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[18] PR742972
Printed by authority of the Commonwealth Government Printer
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