Paul Ramon Zbierski v Seda College
[2022] FWC 1012
•24 MAY 2022
| [2022] FWC 1012 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Ramon Zbierski
v
Seda College
(U2022/3949)
| COMMISSIONER HAMPTON | ADELAIDE, 24 MAY 2022 |
Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.
What this decision is about
This decision concerns an application by Mr Paul Zbierski (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). Mr Zbierski is seeking reinstatement to his position and/or compensation.
Mr Zbierski had been employed as a School Services Officer (SSO) or School Mentor with Seda College (Seda or Respondent), which is a private secondary school.
The termination of Mr Zbierski’s employment with Seda was communicated by letter emailed to him on 10 December 2021. It is common ground that the dismissal was effective on that date. The dismissal took place in the context of the Respondent’s view that the Emergency Management (Education and Early Childhood Settings Vaccination No 2) (COVID-19) Direction 2021 (SA)[1] (the Direction) applied to Mr Zbierski’s workplace and given his refusal to confirm his vaccination status, it was, in effect, unable to continue his employment. Mr Zbierski took issue with the validity of the Direction leading up to, and at the time of, his dismissal, and as part of his application.
The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 4 April 2022.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Applying 10 December 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 31 December 2021.[2] The application was therefore filed 94 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). The Respondent opposes this request. The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]
The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Mr Zbierski was assisted by Mr Timms and Ms Sexton of the Association of Independent Schools of SA represented the Respondent.
In the originating application, Mr Zbierski provided an explanation for the delay in filing which included that he had received advice from the Commission following his dismissal and that this, in part, led to him initially deciding not to bring the unfair dismissal application. During the hearing, Mr Zbierski stated in evidence that this explanation was not correct and had been included in the application by a friend that had assisted him to complete the form. I will return to this as part of my consideration of the evidence.
Mr Zbierski provided a statement[4] and gave sworn evidence on his own behalf. The Respondent did not call any witness evidence and relied upon its Form F3, Employer Response filed in the Commission and submissions. In light of the fact that Mr Timms and Ms Sexton had both only recently been briefed, and Ms Zbierski’s explanation for the delay and certain other circumstances were only confirmed during the hearing itself, I allowed for final written submissions to be provided.
As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that, in the absence of exceptional circumstances, an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
Observations on the evidence
I found the evidence of Mr Zbierski to generally have been given openly and honestly. Part of his evidence was that he suffered from Concussion Syndrome and this impacted upon aspects of his life including his capacity at times to remain focused and to follow processes, and short-term memory loss. The medical evidence about this was provided only as part of final submissions in the form of an unsworn statement by the Applicant’s general medical practitioner made in May 2022 and the report of an Optician. The Respondent has not opposed consideration of this material, it was broadly consistent with Mr Zbierski’s evidence, and I have accepted this, and Mr Zbierski’s evidence about the impact of Concussions Syndrome, on face value.
As will become clear, I have ultimately accepted that this condition was a relevant factor in the delay in filing this application. In that regard, I note that during the proceedings, Mr Timms on behalf of the Applicant foreshadowed a request to adjourn the matter to enable a Psychologist’s Report to be obtained to confirm the nature and impact of the medical condition. I did not consider that this was appropriate for a variety of reasons including that no arrangements were already in place for this occur and a considerable delay might now be expected, the notion of obtaining that advice was largely speculative, and the explanation for the delay clearly advanced by Mr Zbierski in the hearing did not principally rely upon that aspect. In any event, I have now been provided with some medical evidence and accepted it on face value.
I also observe that there was no substantive indication in the evidence that the medical condition prevented Mr Zbierski from receiving advice or making decisions about his rights or about this application. His evidence was that he successfully conducted his own business both before and after his dismissal, and his role as an SSO, largely without significant hinderance. I have also had the benefit of hearing direct evidence from Mr Zierbiski about these matters and about this application.
I have accepted that Mr Zbierski’s medical condition may provide some explanation for the fact that he signed and submitted the unfair dismissal application form without picking up the incorrect explanation provided for the delay which had been inserted. In these circumstances I draw no adverse inference from these events, and I have dealt with the extension of time matter based upon its own merits and the explanation provided by Mr Zbierski in evidence during the hearing.
The immediate sequence of events leading to and following the dismissal and the actions of Mr Zbierski associated with making this application
At the time of the events leading to this application, Mr Zbierski was employed and based at the College and the St Clair Recreation Centre as part of the College’s basketball program.
On 16 November 2021, the Commissioner of Police, acting in his role as the State Coordinator responding to the COVID-19 pandemic, announced the Direction. On face value the Direction required all employees engaged by South Australian schools (including the Respondent) to receive at least 1 dose of a Therapeutic Goods Association approved COVID-19 vaccination and a booking to receive a second dose by 10 December 2021, except those who had a medical exemption endorsed by the Chief Public Health Officer.
Based upon the limited evidence before the Commission about the events after that time, Seda advised Mr Zbierski (and other employees) about its view on the impact of the Direction and sought confirmation of “compliance”. Mr Zbierski advised the Respondent of various objections to the Direction and the requirements of the Respondent in that regard. Various exchanges about this issue occurred and the prospect of termination was advised to Mr Zbierski ahead of that event.
On 10 December, Seda College communicated the termination of Mr Zbierski’s employment by way of correspondence in the following terms:
“… …
As you are aware, the Commissioner of Police, acting in his role as the State Coordinator responding to the COVID-19 pandemic, has announced the Emergency Management (Education and Early Childhood Settings Vaccination) (COVID-19) Direction 2021. This Direction requires all employees engaged at SEDA College SA to receive at least 1 dose of a Therapeutic Goods Association approved COVID-19 vaccination and a booking to receive a second dose by 10 December 2021, except those who have a medical exemption endorsed by the Chief Public Health Officer.
All staff have been advised that in order to continue with their employment at the school, they are required to comply with this Direction.
I sincerely regret that you have decided that you are not prepared to be vaccinated in accordance with the Direction. Regrettably, this puts you in a situation where you will not be able to carry out the inherent requirements of your role after 10 December 2021. This situation is especially difficult because you have been a valued member of staff. I know you will be missed by your colleagues and our community.
However, your refusal to comply with the Direction is a serious breach of your contractual obligations with the school. In light of this situation, I have no other alternative but to terminate your employment summarily. Your last day of employment with the College will be 10 December 2021.
You will not be entitled to receive notice but you will be paid your accrued and untaken leave entitlements (excluding personal leave) in the next pay period.
I appreciate that this will be a very difficult time for you. I urge you to seek personal support from a medical practitioner or other professional.
I do most sincerely wish you all the very best with your future endeavours and thank you for your service to our college.
Yours sincerely
… …”.[5]
I observe that it is likely that Mr Zbierski indicated to Seda that he was not prepared to disclose his vaccination status rather than any direct confirmation of that status.
Shortly after his dismissal, Mr Zbierski became aware of the fact that he could contest his dismissal, and at some point, that a 21-day time limit applied. However, at that time he received some informal (legal) advice which indicated that it would be a “waste of time” to apply. He also considered at that point that he could ramp up his massage therapy business that he had previously operated and continued (albeit a lower level of activity) whilst employed by Seda.
Mr Zbierski subsequently found it more difficult to obtain additional clients for the business and had to prioritise the finding of other employment given his dismissal. He worked a variety of jobs with long hours of work in order to obtain money and this, combined with the lack of a regular income, created considerable financial and personal stress. I accept that this has some impact on the delay in making this application.
There is no evidence that Mr Zbierski made any attempts during this period to seek further advice about his legal position or to contest the dismissal.
At some point in March 2022, Mr Zbierski was advised that he could seek an extension of time to lodge an unfair dismissal application and that the Commission would decide whether his position had merit or not. It was also the case that by the time that the application was lodged, Mr Zbierski was aware that the Direction applying to schools would be concluding at the end of March 2022. Although he indicated that this was not the reason for making the application at that time, this aspect of his evidence was not completely convincing, and I find that this knowledge at least played a part in the decision to proceed with this application.
Mr Zbierski lodged this application on 4 April 2022. This was about 2 weeks after he became aware of the capacity to seek an extension of time. The application was prepared with the assistance of a friend and for reasons outlined earlier it contained inaccuracies that were not picked up by the Applicant who signed and submitted the document without reading the final version.
In terms of Mr Zbierski’s medical condition, I accept that this played a part in his actions. As outlined earlier, I accept that this may have influenced the timeliness of his approach at times including but not limited to the fact that his medical condition had a role in the delay in acting when he became aware of his capacity to seek an extension of time. However, his explanation for the delay, which I have largely accepted on face value, was that he took some informal advice and decided not to contest his dismissal despite an awareness that he could do so, his energy and time was then taken up with earning an income, and that later in March 2022, having not pursued the matter at any level, he became aware that he could at least make the application and filed the application within a few further weeks. The evidence that has been provided does not support the notion that Ms Zbierski’s medical condition fundamentally impacted upon the overall explanation or the timing of these events beyond those aspects of the delay discussed above.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[7]
The requirement that there be exceptional circumstances before the time to apply can be extended under s.394(3) of the Act is a high hurdle.[8] This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) of the Act requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(a)the reason for the delay;
(b)whether the person first became aware of the dismissal after it had taken effect;
(c)any action taken by the person to dispute the dismissal;
(d)prejudice to the employer (including prejudice caused by the delay);
(e)the merits of the application; and
(f)fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[9] I now consider these matters in the context of the application currently before the Commission.
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation for the delay. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour; however, all of the circumstances must be considered on their own merits.[10]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[11]
Although in written submissions prepared on his behalf,[12] reference was made to the original explanation concerning alleged contact with the Commission, this was not consistent with Mr Zbierski’s evidence in his written statement or his oral evidence. I have proceeded on the basis that the Applicant’s evidence represents his actual case. In any event there is no evidence to support an alternative explanation.
Mr Zbierski principally relies upon the following propositions as reasons for the delay:
· He had been advised through informal legal advice that he would be wasting his time in making an application;
· He was required to work a number of jobs and long hours to earn an income to replace his renumeration for his position at Seda and this created stress and tension and was the immediate priority; and
· His medical condition.
I have made findings about the explanation for the delay earlier in this decision. This includes my findings as to the impact of the Applicant’s medical condition.
Given those findings, and for reasons that follow, I do not consider that Mr Zbierski has provided a credible or satisfactory explanation for most of the period of the delay in making the unfair dismissal application.
I do accept elements of Mr Zbierski’s explanation associated with this medical condition and the priority he needed to apply to earning an income. However, the explanation given does not provide a satisfactory or reasonable explanation for much of what is a very significant delay in making this application and does not represent a factor supporting a finding as to the necessary circumstances required by s.394(3) of the Act. Mr Zbierski took advice, decided against making the application and took no steps to further enquire about the matter for a long period before being advised, probably in the context of the change in the Direction, that he could apply.
The delay in this matter is lengthy and my conclusion about the purported explanation for the delay tells against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
I have found that Mr Zbierski was aware of his dismissal on 10 December 2021 when he received the letter of termination and was on notice that it was likely to occur. This means that he had the full 21-day period to make the application. This consideration does not support a finding of exceptional circumstances.
Action taken to dispute the dismissal
Mr Zbierski did initially seek some advice but did not actively dispute his dismissal until this application was lodged.
This consideration does not support a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent contends that it is prejudiced by the application, including as a result of the delay. In that respect it contends that it has replaced the Applicant.
The Applicant accepts that there may be some prejudice to the Respondent but contends that “at this stage” he is not seeking re-employment. I also understand his position to be that that the circumstances of the College and the late application may now prevent reinstatement and as a result, there would be no prejudice to the Respondent.[13]
I find that there may be some prejudice to the Respondent, including as a result of the delay. Although reinstatement is not presently being sought, it is the primary remedy under the Act and the fact that a new employee may have been engaged would not of itself prevent such an order being made. Further, whatever the proper import of the Direction may have been at the time of the dismissal, the Direction no longer operates. However, I also accept that the Commission would have the capacity to consider such prejudice in assessing any remedy. As a result, I attribute this consideration at least some weight[14] in the assessment of whether there are exceptional circumstances.
Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[15]
Mr Zbierski contends that the application has considerable merits on a prima facie basis on 2 related grounds:
· The contract of employment did not make any provision for him to be required to be vaccinated – I understand this to be a foreshadowed contention that requirement was in breach of the contract; and
· The Direction did not authorise the Respondent to dismiss the Applicant.
Seda contends in effect that the Direction made it impossible to have the Applicant continue in his employment given the absence of a confirmed vaccination. Further, as the application has no merit it would not be unfair to refuse the extension of time.
Based upon the limited evidence that is before the Commission going to merit, and the relevant Court and Tribunal decisions to date concerning such matters, it is likely that the impact of the Direction would be critical to the merits of this application. That is, if despite any concerns about the impact of the employment contract, the Direction legally applied to the workplace and had the impact claimed by the Respondent, this may have impacted upon the ability for Seda to lawfully have Mr Zbierski undertake work in his workplace. However, given the nature and location of much of Mr Zbierski’s work, the coverage of the Direction outside of the immediate College premises would need to be examined. Further, Mr Zbierski was dismissed without notice and this would also need to be considered. I have not heard any evidence or submissions about these aspects or whatever alternatives to dismissal (if any) might have existed.
For present purposes, I consider that whilst the Respondent appears to have a substantive position on the merit, the Applicant has an arguable proposition on some elements of his application, depending in each case upon the ultimate evidence and conclusions. Given the state of the evidence and submissions on these matters and the focus of this consideration,[16] I conclude that the Applicant may have an arguable case on those aspects, and I have weighed this consideration positively into the overall assessment of the exceptional circumstances required in this matter.
Fairness as between the person and other persons in a similar position
Both parties made submissions on this aspect. These were largely a subset of their submissions on the other matters or some broader reliance upon the notion of exceptional circumstances.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate, and I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusion
Having considered all the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a), and an extension of time has not been granted, the application has not been made as required by the Act.
On that basis it is appropriate to dismiss the application and an Order[17] to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
R Timms for Mr Zbierski, the Applicant.
E Sexton, and later S Albertini of the Association of Independent Schools of SA, with M Daly for Seda College, the Respondent.
Hearing details:
2022
May 3
Video Hearing.
Final written submissions:
11, 17 and 23 May 2022.
[1] Issued by the Commissioner of Police being the State Coordinator pursuant to s.14 of the Emergency Management Act 2004 (SA).
[2] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[3] Section 394(3) of the Act.
[4] Digital Court Book pg. 28.
[5] Court Book pg. 17.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[9] Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[11] Ibid.
[12] Submissions provided on 11 May 2022.
[13] Drawn from Applicant’s written submissions at 24.
[14] See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 to 300.
[15] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[16] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 for a discussion on the proper approach to s.394(3)(e).
[17] PR741871.
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