Radostin Vasilev v NT Government t/a Territory Families

[2020] FWC 2332

[2020] FWC 2332

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, 6 MAY 2020

Application for an unfair dismissal remedy – application lodged ‘out of time’ – directions for determining ‘out of time’ issue – applicant seeks production of documents – no specificity of what documents are sought and how they are said to be relevant – documents appear to relate to circumstances prior to dismissal and not to reasons why the application was not filed within 21 days after dismissal – principles considered – documents lack any specificity – not relevant to issue before the Commission – ‘fishing’ expedition – notice to produce set aside – further directions for determining ‘out of time’ issue.

BACKGROUND

[1] Mr Radostin Vasilev (the ‘applicant’) was dismissed from his employment as a Youth Justice Officer with the Northern Territory Department of Families (the ‘respondent’) on 30 September 2019. 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 – 112 days later and 91 days ‘out of time’, in accordance with s 394(2) of the Act.

[2] On 6 March 2020, the application was remitted to me by Vice President Catanzariti for the purpose of determining whether the Commission could be satisfied that exceptional circumstances were established, to allow the application to be accepted ‘out of time’. Directions were issued on 9 March 2020 in that respect, and amended on 23 March 2020, to make clear that the directions related only to the ‘out of time’ issue. No hearing date was listed.

Communications with the Commission

[3] In order to provide context to this decision, it is necessary to detail some of the many emails recently sent by the applicant to Chambers.

[4] On 30 March 2020, the applicant filed what purported to be a Form 52 – Notice to Produce – which was opposed by the respondent. As a result, on 14 April 2020 there was a flurry of emails from the applicant to Chambers which began following an email sent to him at 11:36 am that day which reads 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’

[5] The applicant replied at 1:49 pm in these terms:

‘1. I don't have in possession any documents that's why I'm requesting them.

2. I can't submit any documents before they are granted to me.

3. I already submitted why my late submission has extraordinary circumstances.

4. I can submit [an] outline of my application without the documents as I don't have them due to my extraordinary circumstances already explained to you.

5. Would you accept the outline in the form of an email, as writing word files and emails is extremely hard in my extraordinary circumstances?

Thank you

My name is Radostin.’

[6] Chambers responded at 3:05 pm as follows:

‘Dear Mr Vasilev,

You are reminded again that it is not for the Commission to advise you on what course you should take or how you should conduct your case. Therefore:

1. If you intend to press your application for orders for the production of documents, you must comply with the Commission’s directions issued earlier today; or, in the alternative,

2. If you intend not to rely on the documents you seek in any proper Notice to Produce (in other words not press any F52 application) and only intend to rely on your ‘exceptional circumstances’ explanation you submitted on 5 March 2020 to address all the matters under s 394 of the Act, then new directions will be issued to provide a further period of one week for the respondent to respond and a further week for you to reply.

His Honour will then determine the out of time issue ‘on the papers’ i.e. on the written material provided by both parties.

Please advise by 5pm tomorrow 15 April 2020 which of 1 or 2 above you intend to pursue.

Regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM’

[7] At 3:42 pm the applicant replied:

‘I advise that I have submitted the required by you form for requesting documents.

I'm seeking all those documents for the reasons outlined in my previous emails.

I don't understand if you are seeking anything more on that and what exactly?

My name is Radostin.’

[8] Chambers responded shortly thereafter as follows:

‘Dear Mr Vasilev,

You are reminded for the final time that 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. It appears from your most recent correspondence that you are opting for option 1 in Chambers’ previous email to you. This means you must establish why and how the documents you seek in your order for production of documents are relevant to establishing your ‘exceptional circumstances’ for the lateness of your application.

If you are still unclear as to this process, His Honour advises you to seek legal advice regarding this course. Chambers cannot elaborate in any further detail as to this process, given this is the seventh email sent from Chambers to you outlining the procedure regarding order for production of documents, and no such further clarification will be entertained by Chambers.

Regards,

Daniel McNamara

Associate to the Hon. Deputy President P Sams AM’

[9] The applicant replied at 4:05 pm, 4:13 pm and 6:44 pm in the following chain of emails:

‘Ok. What I understand is that you want to clarify the late submission first before looking at the documents I am requesting, correct?

I already have explained in an email why should my late application be accepted and I also have had sent you relevant evidence in the form of 3 additional emails.

After reading the self-representing guidelines on your website I believe I satisfy your requirements for a submission.

Due to:

1. You have my reply to why my application should be accepted even though late.

2. You have evidence related to my reply to why my application should be accepted even though late.

So, I would be happy to hear from you at the due time if my application has been accepted even though late.

Thank you

My name is Radostin.’

‘And to your question, yes,

In addition to my reply already for why my late application has exceptional circumstances, I highly regard the requested by me documents to be additional evidence to supporting my reply to why my late application has exceptional circumstances.

Thank you

My name is Radostin.’

‘… All requested documents on file from the stated agency, which are unknown to me, as I don't have them, but I expect to see amongst them certificates for my medical state as not fit to work during accepted workers compensation claim and hence the unfair dismissal and cease of payments leading to losing property and personal belongings and causing divorce and hardship as homelessness in the condition of not fit to work. Hence causing exceptional circumstances for the late application.

Emails from all those requested agency (sic) that will confirm how the worker was ignored and set up to fail with the malicious intend to be dismissed in the end unlawfully under the wrong act.

Thank you

My name is Vasilev.’

[10] The respondent filed its short submission on its Notice to Produce objection on 28 April 2020, which I reproduce in full:

Dear Associate

I refer to the directions issued in relation to the Applicant’s application for an Order for Production of Documents.

The respondent objects to the proposed order for the reasons set out below:

- The request for documents lacks particularity and would place an unreasonable burden on the respondent

- The request amounts to no more than fishing

- The applicant states that the exceptional circumstances contributing to his out of time application include “losing property and personal belongings and causing divorce and hardship as homelessness in the condition of not fit to work”.

- Any documents that may be held by the respondent, or any of the organisations named in the F52, would have no relevance to the applicant’s ‘exceptional circumstances’, which are all personal matters related to the applicant.

Regards

Cameron McInerney’

[11] The applicant responded by 2 emails at 5:42 pm the same day and 10:27 pm the next day as follows:

Dear associate.

I object the respondent,

1. Blaming me in fishing is unreasonable in due circumstances and contributes further burden in my rights to request any documents that anyhow belong to me as my identity is included.

2. So called "personal circumstances" are mainly caused by the actions of the respondent and those who work for them.

3. Sorry, I can't pinpoint particular documents, as I don't have a list with particular documents in possession of the respondent. If they supply me with such list I maybe able to request particular ones.

4. Anyhow, I don't believe it's a burden at all for the respondent as I was notified previously of the number of pages they have and it's all in electronic format,

Which (sic) those days is a matter of a click of a button. So their actions more likely seems to be phishing.

Thank you

My name is Radostin.’

‘Note/evidence:

I was told by foi (sic) that in normal circumstances there's no issue to receive the documents,

But (sic) because they are going to be used for the fwc they can't release them, unless an order is issued from the tribunal.

Hence there's no burden whatsoever.

My name is Radostin.’

[12] On 1 May 2020, the applicant forwarded to Chambers a news article from the Northern Territory News, dated 4 May 2019, in which the Northern Territory Police expressed concern at the whereabouts of the applicant at that time. He claimed that this was further evidence – ‘Relating [to] my late application in fwc (sic) and My (sic)hard circumstances caused by the employer.’

CONSIDERATION

[13] The abovementioned chronology is but a snapshot of the numerous emails the applicant has sent to the Commission, in which he repeatedly requests information and advice on how he should conduct his case. While I accept unreservedly that the applicant is unrepresented and has sought no independent advice about his case, there are limits to what can be expected from litigants in the Commission, whether represented or not. His requests frequently overstep the line of seeking advice beyond what is permissible, thereby offending the transparent and independent communications between parties and the Commission. He continually ignores my clear directions to properly address the issue presently before the Commission; namely, evidence and submissions as to why the documents he seeks are relevant to the ‘out of time’ issue only. I repeat again, the Commission is not yet dealing with the merits of his unfair dismissal claim. That time might come, but is wholly dependent on him satisfying the Commission that exceptional circumstances have been established for the Commission to accept his unfair dismissal application ‘out of time’.

Relevant principles

[14] The principles to be applied by the Commission in applications for orders to produce documents, is that found in the oft quoted passage in Re Clerks’ (Alcoa of Australia - Mining and Refining) Consolidated Award 1985 Print H2892, where Munro J said:

‘In its exercise of a broad discretion and judgement over use of the power, the Commission will have regard to practice followed in courts of law where a judicial discretion has been applied to regulate use of a subpoena to produce documents. Any such subpoena must specify with reasonable particularity documents which are required to be produced. It may be sufficiently specific to identify documents to be produced by reference to the subject matter to which they relate.

...

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the matters in dispute.

...

A party will not be required to produce documents where to do so would be oppressive; or where the demand for production is a `fishing expedition’, in the sense that it is an endeavour not to obtain evidence to support a case, but to discover whether there is a case at all. Where the proper use of legal compulsion to produce documents is in issue, the tribunal will need to carry out an exercise of judgement upon the particular facts in each case. That judgement requires a balance on the one hand of the reasonableness of the burden imposed upon the recipient, and of the invasion of private rights, with on the other hand, the public interest in the due administration of justice and in ensuring that all material relevant to the issues be available to the parties to enable them to advance their respective cases.’

[15] In considering these principles, particularly going to relevance of documents, I am not satisfied, for the following reasons, that the orders for production should be made.

[16] Firstly, as previously advised to the applicant, the documents must be relevant to the ‘out of time’ issue. This obviously and necessarily relates to the immediate period after the applicant’s dismissal; that is, 30 September 2019. It is this period the applicant must explain as to the reasons why he did not file his unfair dismissal application within 21 days after his dismissal and for another 92 days thereafter. It does not relate to the circumstances which existed prior to 30 September 2019, including in May 2019; some 5 months before his dismissal. Put simply, it is not what the respondent or other agencies are alleged to have done earlier, but what the applicant experienced after his dismissal which prevented him from lodging his claim within time. Little was put in the numerous emails, except for his earlier explanation in an email to Vice President Catanzariti’s Chambers of 5 March 2020, which will be considered and may be relevant when the Commission reaches the next stage in the proceedings. That said, and as I apprehend the applicant’s submissions, he is seeking documents prior to the date of his dismissal. Such documents are not relevant for present purposes.

[17] Secondly, the notice to produce must be set aside as it is not in proper form and does not identify with any specificity at all what documents are being sought; let alone how such documents are relevant. Baldly stating the documents ‘will prove my case’ is demonstrably vague and insufficient for the respondent or any other agency to which the order is directed, to know what documents to search for and where, identify the documents and form a view as to their relevance. It is an onerous burden for the respondent to meet.

[18] Thirdly, while not immediately apparent from the face of the applicant’s emails, it seems clear he is seeking document’s related to his 2016 workers’ compensation claim, his refusal to cooperate and engage with a number of rehabilitation providers, and refusals to attend directed medical assessments between 2016 and 2018. So much is clear from the reasons for his dismissal set out in the respondent’s letter terminating his employment. These matters may – I stress ‘may’ – become relevant, if the applicant overcomes the jurisdictional hurdle to his unfair dismissal application being accepted ‘out of time’.

[19] Fourthly, the applicant’s approach to seeking unspecified documents is little more than a ‘fishing’ exercise which is contrary to the principles to be applied to applications of this kind. To suggest, as he did in his email of 28 April 2020, that the respondent provide its own list of unspecified, unnamed documents and he would decide which ones are relevant, is nothing more than an endeavour to obtain evidence, not to support a case, but to discover whether he has a case at all. This is a classic ‘fishing’ exercise. It is impermissible.

CONCLUSION AND FURTHER DIRECTIONS

[20] For these reasons, I set aside the applicant’s request (application) for the production of documents in relation to his application for an extension of time for the filing of his unfair dismissal claim. That discrete matter is now subject to the following directions:

1. If the applicant seeks to put further evidence and/or submissions on the ‘out of time’ issue, in addition to his email to the Vice President’s Chambers of 5 March 2020, he is to file and serve such material by 5:00 pm 13 May 2020.

2. The respondent shall file and serve any response to the applicant’s ‘out of time’ submissions by 5:00 pm 20 May 2020.

[21] The Commission will only determine the ‘out of time’ issue ‘on the papers, unless either party seeks a formal hearing. Such advice must be given at the same time as the submissions directed above are filed in the Commission and served on the other side.

DEPUTY PRESIDENT

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