Radostin Vasilev v NT Government t/a Territory Families

[2020] FWC 3578

[2020] FWC 3578

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Radostin Vasilev
v
NT Government t/a Territory Families
(U2020/645)

DEPUTY PRESIDENT SAMS SYDNEY, 9 JULY 2020

Termination of employment – application for an unfair dismissal remedy – reinstatement sought – jurisdictional objection – application lodged outside statutory time period of 21 days – 108 days out of time – no reasonable explanation for any period of delay – no evidence of applicant’s claims for delay – all factors considered and balanced – exceptional circumstances not made out – application dismissed.

INTRODUCTION

[1] Mr Radostin Vasilev (the ‘applicant’) was dismissed from his employment as a Youth Justice Officer with Territory Families, a department of the Northern Territory Government (the ‘respondent’ or the ‘Department’) on 13 September 2019. Shortly stated, Mr Vasilev had been employed since 3 February 2014 under the Northern Territory Public Sector 2017-2020 Enterprise Agreement. He was dismissed after a disciplinary process which commenced on 15 July 2019 (which he did not engage with) for the following reasons:

•  multiple refusals by the applicant to present himself for assessment of employment prospects over an extended period of time (over three years); and

•  failure to present for an independent medical examination on 18 October 2018 citing illness, but he had been observed attending Charles Darwin University from 9:30am to 3pm that day.

[2] The applicant filed an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) on 20 January 2020. Section 394(2) of the Act provides 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 permitted by the Fair Work Commission (the ‘Commission’) under s 394(3). These provisions read:

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.”

[3] To have complied with the 21-day time limit imposed by s 394(2) of the Act, the applicant was required to file his application by 4 October 2019. He did not do so until 20 January 2020 (129 days later); thereby making his application 108 days out of time.

[4] As the application was plainly out of time, it was referred to the Chambers of Vice President Catanzariti for pre-hearing process after an unsuccessful conciliation with a Commission conciliator on 20 February 2020. In accordance with His Honour’s procedures, the applicant was asked on 5 March 2020, to provide a written statement explaining why his application should be accepted out of time. Relevantly, His Honour’s letter said, inter alia:

‘Your application will then be listed for hearing to determine the issue based on the material you have provided.’

[5] On 5 March 2020, the applicant sent the following email to the Vice President’s Chambers:

‘Thank you.

Please let me apply for an extension as I have unusual circumstances.

The employer started playing up and not replying to my emails and ignoring solid evidence and medical certificates.

After the employer stop my workers compensation payment I lost my wife and property and personal belongings and email access.

I became homeless under my medical condition. I didn't have help from nowhere.

I was on the verge of a suicide as I didn't any hope seeing how unfair the employer is.

It took me a few months to recover and be able to have address and first thing I tried to make contact with my ex-wife to see my children.

She said that she was given some of my belongings from the house from the bank including my computer and she gained access to my email and that I was fired and she doesn't want to have anything with me.

I realized it's too late to dispute or reply to the false aligations (sic).

Then I saw on your website that you accept late application and I applied.

I asked her to send me the emails on my new email address.

Shortly after I forwarded the emails to you.

Please refer to their date. I was aware of my dismissal approximately not more than a week before that date.

I hope for your understanding of my unusual circumstances.

Thank you.

My name is Radostin.’

[6] On the following day, the Vice President’s Chambers advised the applicant as follows:

‘Dear parties,

I confirm we have received the applicant’s submission, below. The Vice President has now instructed me to reallocate this matter to Deputy President Sams to determine whether to grant the applicant an extension of time in which to validly lodge his application.

I have copied in the Deputy President’s chambers here. You should send future correspondence about this matter to the Deputy President’s associate.’

[7] I have set out the above communications with the Commission as the applicant had wrongly believed that the Vice President had accepted his application ‘out of time’ because he had provided his explanation by 5 March 2020, and he needed to do no more about the ‘out of time’ issue. This was despite the two emails to the applicant of 5 and 6 March 2020 cited above. Having had the application remitted to me, I issued directions for a hearing of the out of time application on 9 March 2020 and listed a further telephone conference on 23 March 2020 in accordance with my usual directions. The conference was unsuccessful and on that day, I issued amended directions to make it absolutely clear that the hearing and directions related only to the ‘out of time’ issue.

[8] The applicant insisted the ‘out of time’ issue had been determined by Vice President Catanzariti’s Chambers and sent the following email to my Chambers on 23 March 2020:

‘Hi there,

I just participated in the teleconference[.]

And I didn't agree with the fact the facilitator disregarded the hearing and adjourned the matter for the purpose of evidence of the delayed application.

He denies to [have] seen my emails I sent initially which were evidence.

He said that delayed application hasn't been granted yet,

But from your documents I can see that my late application was granted and hearing was appointed for the purpose of the application.

Could you send me please the audio recording of the teleconference?

I want to make a complaint about that and ask for continuing the hearing of the actual matter.

Thank you

My name is Radostin.’

[9] The applicant continued to agitate his disagreement with my directions and sought documents he claimed were necessary for him to prove his unfair dismissal claim. After being referred to the relevant information on the Commission’s website and being encouraged to seek legal advice, the applicant filed a purported Form F52 – Notice to Produce – on 30 March 2020. My Chambers responded on 14 April 2020 as follows:

‘Dear Mr Vasilev,

His Honour has received and considered your F52 Notice to Produce of 30 March 2020 and the respondent’s opposition to the orders you seek for the production of documents.

You are advised that His Honour does not have sufficient information to make the orders you seek. A Notice to Produce must contain the necessary detail as to the identification and nature of the documents sought and more importantly, an explanation of how you say the documents are relevant to the issues before the Commission for determination. Further, you should not seek documents which are already in your possession. Simply stating, no more than the documents are necessary for you to prove your case, does not provide the Commission with any basis to grant the application. Further, the Schedule in the draft orders is blank - invalidating the F52.

You are reminded again (see earlier Amended Directions of 23 March 2020) that the Commission cannot consider the merits of your unfair dismissal claim until the Commission is satisfied that ‘exceptional circumstances’ exist to allow your application to be accepted over 100 days late, pursuant to s 394 of the Act. This is the only matter presently before the Commission. It must be determined first.

Accordingly, His Honour will now issue directions for further submissions from both parties on the following issues only:

1. What documents are able to be identified or described by the applicant in sufficient detail as to permit the respondent to properly address the Notice to Produce; and

2. The applicant must explain how the documents in (1) above are relevant to the discrete jurisdictional issue before the Commission as to whether there are ‘exceptional circumstances’ to satisfy the Commission that the applicant’s substantive application should be accepted ‘out of time’, pursuant to s 394 of the Act.

His Honour directs as follows:

1. The Applicant (Mr Radostin Vasilev) is directed to file with the Fair Work Commission, and serve on the Respondent, any submissions in support of his application for an Order for Production of Documents in this matter by no later than 5.00pm on 21 April 2020.

2. The Respondent (NT Government) is directed to file with the Fair Work Commission, and serve on the Applicant, any submissions in opposition of the Applicant’s application for an Order for Production of Documents in this matter by no later than 5.00pm on 28 April 2020.

3. The Applicant (Mr Radostin Vasilev) is directed to file with the Fair Work Commission, and serve on the Respondent, any submissions in reply to the Respondent’s material in (2) above by no later than 5.00pm on 5 May 2020.

Given these new directions now intersect with the Amended Directions of 23 March 2020, those directions are suspended until a decision is issued by His Honour in respect to the application for orders to produce documents.

Regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM

[10] As a result, the Commission published a decision on 6 May 2020, dismissing the applicant’s request for certain documents; see: Vasilev v NT Government t/a Territory Families [2020] FWC 2332. The applicant responded to the decision of 6 May 2020 as follows:

‘Thank you,

I don't agree with the decision as I am entitled to have access to the documents and to choose which one to use.

Being homeless made me lose all documents and my memory of them so i need all of them to review which one I can use where.

That's not fishing, that's normal right to access, review and appoint documents for my case.’

SUBMISSIONS

[11] As the further submissions of both parties were relatively short, I set them out in full below:

For the applicant

[12] In addition to his email to the Vice President’s Chambers on 5 March 2020 (see: [5] above), the applicant submitted as follows:

‘Further to my case:

I made late application as described in my previous emails and I attached 3 emails as evidence also I sent last week a photo and link as evidence for that too.

Over the phone correspondence the respondent made such ridiculous claims:

The respondent claims:

They don't want to pay any money or offer work to Radostin as the money and the employment can go to the poor.

Radostin answer:

I'm poor because of the respondent.

The respondent claims:

That the job position is lost now.

Radostin answer:

I was diagnosed and assessed not to go to the same position anyway. So the respondent need to provide me with new position.

The respondent claims:

That Radostin was fired justly due to not participating in rehabilitation.

Radostin answer:

Respondent hides documents. Don't show evidence. Radostin denies those aligations (sic). The respondent failed to provide rehabilitation to Radostin.

Dismissed outside work comp, which is illegal, as work comp have provision for rehabilitation and disciplinary action.

Further to my application I want to emphasize that Australian Constitution requires the government to provide jobs.

Also I want to acknowledge with respect the Australian parlaimant (sic)that starts with a prayer and finishes with a prayer.

I want to acknowledge With (sic)compassion to the Aboriginal ppl (sic)all massacres that was made to them by the Australian government.

First of all I want to surrender my life to the Almighty God Jesus and his father.

Thank you’

[13] The photo referred to in [12] above, was from a NT News report dated 4 May 2019, of Police concern as to the applicant’s whereabouts at that time.

For the respondent

[14] Mr Cameron McInerney, Employee Relations Manager, submitted on 20 May 2020 as follows:

‘Dear Associate

This submission is provided in accordance with the direction for the respondent to file and serve any response to the Applicant’s ‘out of time’ submissions by 5pm on 20 May 2020.

Evidence

The respondent notes that the Applicant has provided information regarding his personal circumstances on the 4th of May 2019. This information relates to a circumstance which predates the termination of the Applicant’s employment, which occurred on 13 September 2019.

The Applicant has provided no other evidence to identify or support exceptional circumstances that would warrant an extension of time to lodge the application.

Merit

The Applicant has failed to demonstrate any merit in relation to the substantive application.

The Applicant’s employment was terminated following a formal disciplinary process, which was conducted in accordance with Part 8 of the Public Sector Employment and Management Act 1993 (NT).

The formal disciplinary process commenced on 15 July 2019 and concluded with the Applicant’s termination of employment on 13 September 2019.

The breaches of discipline by the Applicant related to a refusal by the Applicant to engage with his employer in relation to his employment. Relevantly, the breaches related to:

- multiple refusals by the Applicant to present himself for assessment of employment prospects over an extended period of time;

- failure to present for an independent medical examination.

The Applicant did not engage with the formal disciplinary process. Relevantly:

- the Applicant did not respond to correspondence from the Chief Executive Officer setting out allegations of breach of discipline (dated 15 July 2020)

- the Applicant did not respond to correspondence from the Chief Executive Officer setting out findings of breach of discipline and foreshadowing termination of employment (dated 20 August 2019).

Consequently, the Applicant’s employment was terminated on 13 September 2019.

Summary

The Applicant demonstrated a continued failure to engage with his employer over a number of years, and his employment was terminated as a consequence. The termination of employment was conducted in accordance with the statutory process applicable to employees in the Northern Territory Public Sector.

The application for an unfair dismissal remedy was subsequently lodged more than 100 days out of time. The Applicant has not provided any evidence that supports the stated reasons for the delay in filing the application, and the Applicant has not identified any merit in relation to the substantive application.

The application should be dismissed by the Commission.’

In reply

[15] The applicant replied on 22 May 2020 in the following terms:

‘Further,

On second thought I am surprised to find that the respondent and even the associate lead by the respondent are individuals who lack life experience.

I came to this conclusion,

By the means of observation,

How both sides are expecting me, Radostin, being homeless after losing all posessions (sic) and in unhealthy mental state with the Intention to commit suicide,

To have been thinking during that time to collect evidence and further to have been seeking to apply in fair work commission in their due times.

All common sense will have the least compassion to a situation like this.

I don't want to offend you or anything, as you are human beings loved by God as well, but that's rediculous (sic)people like you to occupy such responsible roles.

And, yet, there's evidence existing for my health and fitness to work and financial situation In posession (sic) of the respondent, and it's ugly that they are too lazy to provide and even intentionally hide it.

Now I'm really not surprised how this country still have laws in force discriminating the indegioneous (sic)people.

I'm ashamed to call myself Australian anymore.

I am avoiding being harsh on you,

But that injustice needs to stop sooner or later.

Thank you

My name is Radostin.’

CONSIDERATION

[16] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant who is seeking an extension of time for the filing of an unfair dismissal application; see: Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288. A Commission decision to extend time under s 394(3) of the Act, involves an exercise of discretion by the decision maker.

[17] The meaning of ‘exceptional circumstances’ was considered by the Full Bench of Fair Work Australia (as the Commission was then styled) in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). Although considered under s 366(1) General Protections provisions of the Act, Nulty has become established as the seminal authority on the meaning of ‘exceptional circumstances’ under s 394(3) of the Act. At [13]-[14] the Full Bench said:

‘[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.’

[18] The Full Bench in Nulty also relied on the following observations of Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26]:

‘[26] Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.’

[19] ‘Exceptional circumstances’ can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, when taken together, can be seen as exceptional. It is necessary to take each factor into account by considering and giving appropriate weight to each factor; see: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (‘Stogiannidis’).

[20] Facts and circumstances prior to the dismissal and in the period from the dismissal to the expiry of 21 days, may be relevant but must have a relevant connection to explaining the delay to determine whether exceptional circumstances are established. As the majority in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[21] Plainly, the delay required to be considered in the period beyond the prescribed 21 days period, does not include the period from the date of the dismissal to the end of the 21-day period; see: Stogiannidis at [22]. That said, the absence of any explanation for any part of the delay will usually weigh against an extension while an acceptable explanation for all of the delay will usually weigh in favour of an extension being granted.

[22] I turn to consider and make findings on the discrete matters in s 394(3) of the Act.

The reason for the delay (s 394(3)(a))

[23] Regrettably, and despite my pleadings, the applicant provided no cogent evidence of his claimed family circumstances and medical condition as the reasons for the delay in filing his application within time. There are no dates or details mentioned relevant to the period after his dismissal, and after the 21-day expiry period.

[24] The applicant made numerous complaints and unsubstantiated allegations against the respondent which relate to the reasons for his dismissal, not the reasons for the delay in filing his unfair dismissal application. While I accept the unrepresented applicant was focussed on his perceptions of the unfairness of his dismissal, this is not the focus of the present proceedings (save for a prima facie view of the merits of his claim under s 394(3)(e) which I will come to in due course).

[25] What is also evident from the applicant’s submissions is that he entirely blames the respondent for the family and personal circumstances which he found himself in at some unspecified times, after his employment was terminated. He describes the respondent’s actions as illegal and without any evidence, and maintains that the Australian Constitution requires the government to provide him with a job and a new position, notwithstanding his undisputed refusals to attend an independent medical examination to establish his fitness for work. Apart from the fact that the Australian Constitution provides no such guarantees, the respondent had an obligation to ensure the applicant’s fitness for work in the interests of ensuring his own health and safety, and that of the Department’s other employees and clients.

[26] In respect to the NT News article of 6 May 2019, it is difficult to see how an unexplained news article 5 months before the applicant was dismissed, has anything to do with explaining the absence of any credible explanation based on actual evidence for the delay in filing his unfair dismissal application. Frankly, the Commission has no credible explanation for any period of the delay, either prior to dismissal or for the 108 days thereafter. On any objective view, this delay was significant and the absence of any explanation for any period of delay, weighs against the exercise of the Commission’s discretion to grant a further period for the application to be made.

Whether the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[27] In his Form F2 – Unfair dismissal application – the applicant claimed he was notified of his dismissal and it took effect on 1 October 2019. He provides no explanation as to whether that date was when he received the letter terminating his employment or there was some other basis for his belief that this was the date he knew of his dismissal with one possible rider which I will explain. The applicant was provided with a breakdown of his final entitlements and the payment amounts were credited to his bank account on 1 October 2019. Importantly, the letter reads, inter alia:

‘Following your cessation from the Territory Families at close of business on Friday, 13 September 2019, your final entitlements have been calculated as follows:

[entitlement breakdown provided]

Your final net pay of $5,946.62 was processed on Tuesday, 1 October 2019, please allow 3-5 working days for the funds to be available in your bank account.

Please find enclosed a statement of service, this should be stored in a safe place as it may be used as proof of service for future employment.

To ensure receipt of your Payment Summary at the end of the financial year, please advise Payroll Services via the contact details on page 1 if there are any changes to your current postal address.

Should you have any queries, please contact Payroll Services on 1800 940 771.

Yours sincerely,

Sandra Papandonakis

Director

Tuesday, 1 October 2019’

[28] At its highest, perhaps the applicant confused this date with the date he had been actually dismissed. He most certainly had not been at work since 20 August 2019.

[29] On 15 July 2019, the applicant was advised by registered mail of the commencement of the disciplinary process in respect to five breaches of the legislation and administrative requirements in respect to his employment. On 20 August 2019, the applicant was advised of the findings of the disciplinary process, and invited to respond again by registered mail, and on 13 September 2019, the applicant was advised of his dismissal. There was no evidence that these registered letters were returned undelivered or otherwise did not find their way to his home address. In these circumstances, I am satisfied the applicant first became aware of the possibility of his dismissal on 15 July 2019 and advised of its confirmation on or about 13 September 2019. In any event, even if the date of 1 October 2019 was the date he first became aware of his dismissal, he waited a further 111 days to file his unfair dismissal application. This factor tells against an extension of time being granted.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[30] There was no evidence that the applicant took any action to dispute his dismissal until filing this application. This factor tells against an extension of time being granted.

Prejudice to the employer including prejudice caused by the delay (s 394(3)(d))

[31] Prejudice to the employer will weigh against a granting of an extension of time. However, mere absence of prejudice to the employer is an insufficient basis to grant an extension. The employer must produce evidence to demonstrate prejudice. Ordinarily, a long delay will give rise to a general presumption of prejudice; see: Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[32] As the respondent provided no evidence of any prejudice, I am prepared to regard this factor as a neutral consideration.

The merits of the application (s 394(3)(e))

[33] In Kornicki v Telstra Network Technology Group Print 3168, 22 July 1997, the Full Bench considered the principles applicable to the exercise of discretion under s 174CE(8) of the Workplace Relations Act 1996 and said:

‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[34] My consideration of the merits of the application is essentially limited to the documentary evidence as to the reasons for the applicant’s dismissal and the disciplinary processes undertaken by the respondent. The applicant did not seriously engage with challenging those reasons. His response to the question as to why the dismissal was unfair in his Form F2 was ‘because it was malicious with made up reasons and was set up for getting rid of me and cause me harm’.

[35] Given nothing else was put by the applicant other than further wild and unsubstantiated allegations against the respondent, I am not satisfied that the applicant has an arguable prima facie case as to the merits of his application. On balance, this conclusion does not support the granting of an extension of time.

Fairness between other persons in a like position (s 394(3)(f))

[36] The Full Bench of the Commission in Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine[2016] FWCFB 6963 considered this factor and said at [41]:

‘… Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

[37] In my view, given the obligations on the respondent to ensure the safety of the applicant, its other employees and clients, there appears to me to be nothing unusual in the respondent’s approach in dismissing the applicant as it would likely do, if over a long period of time, an employee could not satisfy the employer of his/her fitness for work. There is nothing unorthodox or inconsistent about this approach. I consider this factor to be a neutral consideration in this case.

CONCLUSION

[38] After weighing each of the matters the Commission is required to take account of, I am not satisfied that when considered individually or collectively, that there are ‘exceptional circumstances’ under s 394(3) of the Act, such that the discretion to grant a further period in which his unfair dismissal application should be exercised in favour of the applicant.

[39] Accordingly, application U2020/695 is dismissed. I so order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720829>