Tony Velkovski v Ikon Services Australia Pty Ltd

[2016] FWC 3794

[2016] FWC 3794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Tony Velkovski
v
Ikon Services Australia Pty Ltd
(C2015/7042)

COMMISSIONER CIRKOVIC HOBART, 10 JUNE 2016

Application to deal with contraventions involving dismissal – whether to extend time for lodging the application

[1] On 22 October 2015 Mr Tony Velkovski (Applicant) lodged a general protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The Respondent to the application is Ikon Services Australia Pty Ltd (Respondent).

[2] The Applicant commenced employment with the Respondent on 16 March 2015. He was employed as a Sweeper Operator. 1

[3] The Respondent says that it did not dismiss Mr Velkovski. It says Mr Velkovski voluntarily resigned from his position on or around 16 June 2015. 2

[4] In the F8 general protections application form, Mr Velkovski answered questions 1.1, 1.3-1.4 as follows:

• “1.1 On what date were you dismissed? I have not been dismissed, therefore there is no date of dismissal.”



• “1.3 What reasons (if any) did the Respondent give for dismissing you? I have not been informed of any dismissal. I have no reason nor explanation as to why I’m not at work. Zero. Nothing. They just want me to go away, disappear for no reason. I have not received any letter of dismissal/or separation certificate from Ikon Services.”



• “1.4 Are you making this application within 21 calendar days of your dismissal taking effect? No.”

[5] On 28 January 2016, the Fair Work Commission (Commission) contacted the Applicant by telephone. The Applicant stated that he was no longer working with the Respondent and that he was not dismissed. The Applicant said that his last day of work was 7 July 2015. He was advised that his application was therefore lodged out of time. The Applicant was further advised that he was required to provide a specified date of dismissal, that this was a very important fact and that the Commission could not advise him of that date. The Applicant was advised that the Commission would call him back to confirm the date of dismissal. Later that day, the Commission made contact with the Applicant by telephone. The Applicant said that 7 July 2015 was the date of dismissal.

[6] On 17 March 2016, the Respondent contacted the Commission by telephone and advised that it believed the application was lodged out of time. It stated that no date of dismissal was identified by the Applicant on the application form and that the Applicant stated that he believed that he had not been dismissed. Further, the Respondent provided 16 July 2015 as the date that the employment ended.

[7] On 23 March 2016, the Commission contacted the Respondent by telephone and advised that the Form F8A Employer Response was required as soon as possible. On 8 April 2016, when the matter was scheduled for conciliation, the Applicant was unable to participate as he was at his new job. The Applicant requested the matter be listed at another time.

[8] On 21 April 2016, the parties were advised by the Commission that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.366(2) of the Act. The matter was listed for hearing on 18 May 2016.

[9] On 27 April 2016, the parties were advised by the Commission that the matter had been adjourned to 13 May 206.

[10] On 5 May 2016, the Application was allocated to me and I dealt with it by conducting a telephone hearing on 13 May 2016.

[11] The Applicant was self-represented. The Respondent was self-represented.

Legislative scheme

[12] Subsection 366(1) of the Act provides that an application under section 365 must be made within 21 days after the dismissal took effect:

(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 (2).

[13] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[14] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 3where 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.

[Endnotes not reproduced]

[15] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[16] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. (See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403).

[17] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[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. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … 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.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Was Mr Velkovski dismissed?

[18] Section 386 defines dismissal in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[19] None of the exclusions set out in s.386(2) have application to Mr Velkovski’s circumstances. I have concluded that, notwithstanding that s.386 relates to dismissal in the context of Division 3 of Part 3-2 and applies to unfair dismissals, the concept of dismissal as being an action at the initiative of the employer remains central to the concept of dismissal for the purposes of s.365.

[20] The Respondent disputes that Mr Velkovski was dismissed. Mr Velkovski’s own evidence at the hearing was that he had not been dismissed. The time limit for the making of a s.365 application commences from the time the dismissal took effect. Hence, if there was no dismissal there can be no basis upon which to grant an extension of time. Consequently, I have initially considered whether Mr Velkovski was dismissed within the meaning of s.386 of the Act. In reaching my conclusions, I have had regard to the Australian Industrial Relations Commission Full Bench decision in O’Meara v Stanley Works Pty Ltd⁴. This decision considered the concept of “termination at the initiative of the employer”.

[21] In O’Meara v Stanley Works Pty Ltd the Full Bench stated:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [Mohazab at page 205] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[22] As stated earlier Mr Velkovski has provided the Commission with more than one version of events concerning the date of dismissal. In 1.1 of his F8 application form he answered “I have not been dismissed, therefore there is no date of dismissal”. In his subsequent submissions and evidence at the hearing, he claimed that he had not been dismissed and that he had not resigned.

[23] Mr Velkovski’s evidence of his understanding of the status of his employment, when he left work on 2 July 2015 was that he was going away for an indefinite period and that this was not a problem for the Respondent. Mr Velkovski stated that he had told his manager, Mr Greg Tehan that he was going overseas, sometime approximately three weeks before he left. Mr Velkovski’s initial evidence was that he had told Mr Tehan when he would be leaving and returning and that he had given him dates. His further evidence was that he had said six weeks plus, that it could go into eight or nine weeks. He then confirmed that he had not given a specific date of return, because he was unsure. He also stated that he had advised Mr Tehan that it could be about eight weeks or so and that Mr Tehan had said that this was no problem. Mr Velkovski confirmed that he had not made any attempts to contact the Respondent whilst overseas to and advise of his return date. The Respondent’s evidence was that at no time during his discussion with Mr Tehan had Mr Velkovski mentioned a specific time period and that Mr Tehan had not approved leave for that period.

[24] The Respondent’s evidence was that Mr Velkovski met with Mr David Ensor, its human resources manager on 16 June 2015. That at that meeting Mr Velkovski had said he wanted to go overseas for an indefinite period of time. The Respondent’s evidence was that Mr Velkovski had said at that meeting that he was going to discuss with his partner whether he should resign. That Mr Velkovski had subsequently contacted Mr Ensor to say that he had decided to resign.

[25] Mr Velkovski’s evidence at the hearing was that it was more likely that the 3 July 2015 was his final day of work, that it would have been a Thursday or Friday, as on the 7 July 2015 he left for overseas. The Respondent’s evidence was that Mr Velkovski’s final day of work was 2 July 2015. The Respondent’s evidence was that Mr Velkovski was instructed to leave his pass and uniform at work on 4 July 2015, which was originally scheduled to be his last day of work. Mr Velkovski’s confirmed this. The Respondent’s evidence was that it would never take back a pass or uniform from an employee that they thought was going to return to work in the future as there would be no reason to do so.

[26] The Respondent submits that the Applicant voluntarily resigned in June 2015 and that this resignation took effect from July 2015. The Respondent provided payroll records that it said demonstrate that the termination of the Applicant’s employment was processed as a resignation and that the Applicant was paid his outstanding entitlements in full. The Respondent stated that this occurred on 16 July 2015.

[27] Mr Velkovski’s initial evidence was that he received his normal wage in his final pay; he confirmed that he had received his payslip for this pay. When asked whether he had received any pay whilst he was overseas, Mr Velkovski’s evidence was again that he had received his pay for his final week and nothing else. When asked whether he had his final payslip with him, Mr Velkovski said that he did not. When asked whether he had realised he had been paid his outstanding entitlements, his evidence was that he had not and that he had been paid for one week he had worked and one week’s holiday pay. The Respondent’s evidence was that the pay slip showed more than one week’s holiday pay and that this evidenced payment of his outstanding entitlements. Mr Velkovski’s evidence was that he did not know how much he was going to get paid, that he was not going to work out exactly what he should have been paid and that he had not thought it was a termination payment.

[28] Mr Velkovski’s evidence was that he returned to Australia on 6 September 2015. His evidence was that on the 7 September 2015 he spoke with Mr Ensor and Mr Ensor advised him that he would receive a phone call within 48 hours. His evidence was that he did not receive a phone call within that time, that he had called the Respondent later and was told that he would receive a call. Mr Velkovski’s evidence was that on 10 September 2015 he received a text message from the Respondent saying that it did not have anything for him at that point in time. Mr Velkovski’s evidence was that when he received that message he felt that the Respondent no longer wanted him to work for it.

[29] Mr Velkovski’s evidence was that he then contacted the Commission and was advised that he could fill out the F8 general protections form. When asked why it had taken him so long to fill out the form, Mr Velkovski’s evidence was that he had sent an email to Mr Ensor after 10 September 2015 in an effort to sort the matter out. Further, that he had not wanted to get involved in a legal matter, that he had been in shock and upset, that he had looked for work and started working and that he had concentrated on his family and other things.

[30] The Respondent refuted Mr Velkovski’s account of the conversation on 7 September 2015 with Mr Ensor. The Respondent states that Mr Ensor had said that there were no positions available for the Applicant at its new location and that if there were any other positions across the business that the Respondent would get back to him within 48 hours.

[31] I do not accept Mr Velkovski’s account of the facts in dispute. His account of the events changed repeatedly during the course of the hearing. I have concluded that Mr Velkovski chose to leave the Respondent after his request for unpaid leave for an unspecified period of time was denied. I do not accept Mr Velkovski’s position that he was told that he would still have a job to come back to when he returned. There is simply no evidence or logic to support that position. Mr Velkovski may have had a good reason to travel overseas but the facts are that he did so knowing that this brought his employment to an end. Mr Velkovski’s own evidence simply does not establish that the Respondent set out to bring the employment relationship to an end or support the proposition that he was either dismissed or constructively dismissed.

[32] I do not consider that Mr Velkovski has established an action or actions on the part of the Respondent which were either intended or had the probable result of bringing the employment relationship to an end.

[33] Accordingly, I do not consider that I have a capacity to determine an extension of time application. Any consideration of the factors set out in s.366(2) then becomes a hypothetical exercise in that I would need to assume that Mr Velkovski was dismissed. This would be contrary to all of the credible material before me. The Respondent’s extension of time objection must be dismissed on the basis that I agree with the Respondent that Mr Velkovski was not dismissed at the employer’s initiative.

Conclusion

[34] I have concluded that Mr Velkovski was not dismissed. Dismissal is a fundamental prerequisite for the making of an application pursuant to s.365. It follows that I do not think that Mr Velkovski has made a valid application. However, the Act does not establish a jurisdiction upon which the Commission can dismiss an application on this basis.

[35] A certificate pursuant to s.368 will be issued. This certificate will advise that I consider Mr Velkovski’s application has no reasonable prospect of success in that he was not dismissed and accordingly, on the material before me, the application cannot properly be made.

COMMISSIONER

Appearances:

Tony Velkovski, Applicant;

David Ensor and Bambi Scholes-Miller, for the Respondent.

Hearing details:

2016

13 MAY (Telephone hearing).

 1 F8 General Protections Application, at 1.2 and p.7

 2 F8A Employer Response Form, at 2.2 & Respondent’s submissions

 3   [2011] FWAFB 975.

4 PR973462

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<Price code C, PR581476>