Zare Stefan Zarev v The University of Western Australia

[2016] FWC 4895

[2016] FWC 4895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Zare Stefan Zarev
v
The University of Western Australia
(C2014/3336)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 20 JULY 2016

Application to deal with contraventions involving dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] On 5 March 2014 Mr Zare Stefan Zarev (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The University of Western Australia (UWA - the Respondent) on 14 February 2014 in contravention of the general protections provisions of the Act.

[2] In its Form F8A – Employer response to general protections application, UWA contended that Mr Zarev had not been dismissed as he was employed on a casual basis for the period 22 February to 28 June 2013 and that his employment ceased on 28 June 2013. UWA further contended that Mr Zarev’s application had therefore been made outside the 21-day timeframe specified in s.366(1) of the Act.

[3] Mr Zarev’s application was the subject of a conference before Commissioner Cloghan on 17 April 2014. Commissioner Cloghan subsequently issued a Statement and Directions on 28 April 2014. The application was subsequently held in abeyance as in August 2014 the Office of the Public Advocate in Western Australia applied for the appointment of a guardian for Mr Zarev. It is not clear from the file whether that application was granted.

[4] On 5 March 2015 Mr Zarev contacted the Fair Work Commission (the Commission) seeking to press his application. The matter was the subject of a conference before me on 5 November 2015 with Directions issued on 6 November 2015.

[5] UWA’s jurisdictional objections were the subject of a telephone hearing on 11 December 2015. At the telephone hearing, Mr Zarev represented himself, while Ms Mary Macpherson, a Senior Employee Relations Officer with UWA, appeared for the Respondent.

[6] For the reasons set out below I have found that Mr Zarev’s employment ceased on 28 June 2013. On that basis, Mr Zarev’s general protections application was lodged 229 days outside the 21 day statutory timeframe. Having considered all of the factors set out in s.366(2) of the Act, I am not satisfied that there are exceptional circumstances warranting Mr Zarev being granted a further period within which to make his application under s.365. Accordingly, Mr Zarev’s application is dismissed.

Background

[7] Mr Zarev was employed by UWA under a General Staff Casual Employment Agreement (the Employment Agreement) on 11 February 2013 as a Web Programmer Level 5/6 in the School of Population Health. The Employment Agreement identifies 11 February 2013 as the start date of the Employment Agreement and 12 February 2014 as the expiry date, though underneath these dates appear the words “Dates must only be for the anticipated period of employment” 1. Section 5 of the Employment Agreement which appears immediately above Mr Zarev’s signature states, inter alia, that:

“I accept the terms of the Casual Employment Agreement … I understand that the Agreement may be varied or terminated with one hour’s notice. I accept that payments will be made on submission of authorised timesheets. I accept that there is no commitment to any further employment by the University.” 2

[8] Mr Zarev was one of three casual Web Programmers employed by the School of Population Health at the time.

[9] In May 2013, Mr Zarev’s manager at the School of Population Health, Mr Dimitris Matsakidis, informed him and the other two casuals that he would not be able to offer them any more work after the end of June 2013 as he had no funds.

[10] It appears, based on Mr Zarev’s submissions, that he accepted the situation until he learned from one of the other casuals that he had been told by Mr Matsakidis to reapply for more work after he returned from an overseas trip and that in mid-August 2013 that person was again working for UWA.

[11] On 20 August 2013 UWA advertised a 12 month appointment as a full time Web Programmer Level 5/6 in the School of Population Health 3. Mr Zarev contended that on learning the above and seeing the job advertisement he contacted the School of Population Health and requested more casual hours, adding that none were provided.

[12] It appears that Mr Zarev joined the National Tertiary Education Union (NTEU) in January 2014. This is supported by an email he received from NTEU Membership on 30 January 2014 4.

[13] On 14 February 2014 UWA’s Acting Vice Chancellor, Professor Alec Cameron, wrote to Mr Zarev in the following terms:

“Dear Mr Zarev

As you are no longer a staff member or student of the University, it is not appropriate for you to attend on University premises or continue to use the University’s services.

You have been asked in the past not to email threats and abusive comments to University officers, often copied to external agencies, and have continued to do so. I conclude that you will continue to make threats and abusive comments to University officers unless restrained.

Under the circumstances I have decided to exclude you from all University grounds including the University libraries, theatres, gardens and premises. In the event you fail to observe this exclusion, University security officers will escort you from the University grounds and will report your trespass to the Police.

In addition, your University Internet access, and staff and student email accounts are revoked.

This decision is not taken lightly, but is a necessary response to your behaviour. In this matter my decision is final and no further correspondence will be entered into.” 5

[14] As previously noted, Mr Zarev lodged his general protections application on 5 March 2014. In his application Mr Zarev contended that he had been dismissed in contravention of ss.346 and 355 of the Act which respectively deal with protection as a result of being or not being a member of an industrial association and coercion in respect of the allocation of duties to a particular person.

The Applicant’s case

[15] In his written submissions Mr Zarev stated that he was informed by his manager that due to a lack of funds he would be dismissed on 28 June 2013 or thereabouts. Mr Zarev further submitted that at the time he accepted in good faith his impending dismissal by UWA. Mr Zarev contended that after he later learned that other casual employees had been re-engaged, he requested that he be provided further hours of work by the School of Population Health and asserted that he remained a staff member due to what he described as a “bad-faith dismissal”.

[16] Beyond this, Mr Zarev contended among other things in his written submissions that:

• a meeting with him was subsequently arranged by Professor Cameron at which Professor Cameron agreed to a number of things, including that further work would be provided to him in return for Mr Zarev arranging to drop three court cases involving UWA and not to raising any new actions;



• the first time that he received notice that there was any concern with him attending the University or continuing to work was in Professor Cameron’s letter of 14 February 2014;



• his general protections application was made within 21 days of him receiving the abovementioned letter from Professor Cameron; and



• even if his application was lodged out of time, the timeframe for making his application should be extended as his dismissal had caused him significant hardship.

[17] At the telephone hearing Mr Zarev contended that the date of his dismissal was 14 February 2014 which is the date of the abovementioned letter to him from Professor Cameron. Also at the hearing, Mr Zarev reiterated key aspects of his written submissions and submitted that:

• he took no action to progress his application to the Commission as a result of the meeting he had with Professor Cameron in September 2013;



• following that meeting he went to UWA’s IT support office and advised that he was ready and available to work and that he would be waiting to be contacted in his room; and



• Professor Cameron had conceded in separate trial proceedings that employment matters were discussed at the meeting he had with Mr Zarev in September 2013.

[18] With regard to the last point above, Mr Zarev subsequently provided the Commission with copies of the transcript of trial proceedings in the Western Australian Magistrates Court of Western Australia Civil 6 in which Professor Cameron allegedly made the abovementioned concession. The Commission has examined the transcript of Professor Cameron’s evidence in that matter and was unable to identify any such concession by Professor Cameron.

[19] In response to questions from the Commission at the telephone hearing, Mr Zarev responded that he could not recall the last time he actually worked for UWA and that he considered Professor Cameron’s letter of 14 February 2014 to be a termination letter because of the letter’s first sentence which stated “As you are no longer a staff member or student of the University …” Further, despite being asked by the Commission on a number of occasions, Mr Zarev did not indicate whether he performed any further paid work for UWA’s IT support office as a result of him contacting the office following his meeting with Professor Cameron.

The Respondent’s case

[20] UWA submitted that Mr Zarev was employed on a casual basis as a Web Programmer in the School of Population Health for the period 11 February to 28 June 2013, with his last working day being 28 June 2013. UWA highlighted in its reply submissions that Mr Zarev confirmed in his written submissions that his manager had advised him that due to a lack of funding his employment would cease on 28 June 2013.

[21] UWA also contended that Mr Zarev’s reliance on Professor Cameron’s letter of 14 February 2014 as the purported date of his dismissal was misconceived as the letter was not a termination letter. UWA further contended that the letter merely referenced the fact that Mr Zarev was no longer an employee as an additional factor justifying his exclusion from attending University premises or using its services as a result of his behaviour after being excluded from being a student at the University.

[22] Finally, UWA submitted that Mr Zarev had not demonstrated any exceptional circumstances warranting the Commission granting him a further period within which to make his application and disputed that it had taken adverse action against Mr Zarev because he had a workplace right, and exercised such a right or had indicated that he proposed to exercise such a right.

[23] At the telephone hearing, UWA drew the Commission’s attention to the Employment Separation Certificate provided to Mr Zarev which cited 28 June 2013 as the date on which his employment ceased 7. UWA also reiterated that the last day on which Mr Zarev worked for it was 28 June 2013, that Professor Cameron’s letter of 14 February 2014 was not a dismissal letter and that Mr Zarev had not established the existence of exceptional circumstances in this case.

The statutory framework

[24] Section 366 of the Act provides:

“366 Time for application

(1) An application under section 365 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).

(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.”

[25] To determine whether Mr Zarev’s application was made within the statutory timeframe specified in s.366 of the Act it is first necessary to determine when Mr Zarev’s employment ceased.

When did the Applicant’s employment cease?

[26] UWA submitted that Mr Zarev’s employment ceased on 28 June 2013 which was the last time that he worked for the UWA, whereas Mr Zarev contended that he was dismissed on 14 February 2014 which was the date of Professor Cameron’s letter.

[27] What can be adduced from the material before the Commission is that:

• Mr Zarev stated in his written submissions that he was informed by his manager that due to a lack of funds that he would be dismissed on 28 June 2013 or thereabouts;



• timesheets provided by UWA show 28 June 2013 is the last date on which Mr Zarev performed paid work for UWA 8; and

the Employment Separation Certificate provided to Mr Zarev cites 28 June 2013 as the date on which his employment ceased.

[28] While I can appreciate that Mr Zarev was aggrieved that he was not offered further casual work while others were, this does not of itself mean that his employment continued beyond 28 June 2013. Further, in circumstances where Mr Zarev acknowledged that he was advised by his manager that he would be dismissed on 28 June 2013 or thereabouts his contention that Professor Cameron’s letter of 14 February 2014 constitutes a termination letter is highly implausible.

[29] Taking into account all of the above, I find that Mr Zarev’s employment ceased on 28 June 2013, being the last day he worked for UWA. Accordingly the 21 day statutory timeframe for the lodging of his general protections application should be calculated based on that date. Relying on that date means that his general protections application was lodged 229 days outside the statutory timeframe.

Whether to allow a further period for the application to be made

[30] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.

(a) The reason for the delay

[31] At the telephone hearing, Mr Zarev contended that he took no action to progress his application to the Commission as a result of the meeting he had with Professor Cameron in September 2013. Also at the telephone hearing, Mr Zarev referred to his hands having been injured for a year, with the injury having recently flared again. Mr Zarev did not provide any medical evidence to substantiate the nature and effect of his injury. However, I note that based on Mr Zarev’s contention that he had been injured for a year, he would have been first injured in late 2014 which is after his application had been lodged. Accordingly, the injury cannot be relied upon as a reason for the delay. Beyond this, Mr Zarev alluded to a number of other legal matters he had on foot but did not elaborate as to how they precluded him from lodging his application within the 21 day timeframe specified in the Act.

[32] UWA submitted that Mr Zarev had not demonstrated any exceptional circumstances warranting the Commission granting him a further period within which to make his application.

[33] Based on the material before the Commission it appears that Mr Zarev accepted his dismissal on 28 June 2013 until he learned in mid-August 2013, i.e. after the 21 day timeframe had expired, that other casual employees had been offered further work by the School of Population Health. After learning of this, Mr Zarev took a number of steps to seek further work with UWA, including meeting with Professor Cameron in September 2013. Even allowing some period for the actions which Mr Zarev contends were agreed at that meeting to occur does not explain why Mr Zarev did not lodge his application until 5 March 2014, particularly in circumstances where he considered his dismissal to be a “bad-faith dismissal” as of mid to late August 2013. As determined by the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 9, an employee needs to provide a credible reason for the whole of the period that the application was delayed. Based on the material before the Commission, I am not satisfied that Mr Zarev has provided a credible reason for the whole period of the delay.

[34] For all the above reasons, the factors relied upon by Mr Zarev do not provide an acceptable explanation for the delay in lodging his application. Accordingly, this factor does not support a finding of the existence of exceptional circumstances.

(b) Any action taken by the person to dispute the dismissal

[35] As noted above, it appears that Mr Zarev accepted his dismissal on 28 June 2013 until he learned in mid-August that other casual employees had been offered further work by the School of Population Health. Even then, the action which Mr Zarev took was to request that he be provided with more hours of work, though he did assert that he was still a staff member due to what Mr Zarev considered to be a “bad-faith dismissal”.

[36] In the circumstances where Mr Zarev did not dispute his dismissal until after the 21 day timeframe had expired, I consider this issue to be a neutral consideration.

(c) Prejudice to the employer (including prejudice caused by the delay)

[37] Neither party made any submissions regarding this factor. Against that background, I consider it to be a neutral consideration.

(d) The merits of the application

[38] Mr Zarev stated in his application that “It has become apparent the Respondent only took this action after I joined the NTEU and undertook delegate training …” 10 As to Mr Zarev’s contention that UWA had breached s.355 of the Act in dismissing him, Mr Zarev in his written submissions contended that a Mr Jon Stubbs of UWA could have been coerced by Professor Cameron.

[39] As previously noted, UWA disputed that it had taken adverse action against Mr Zarev because he had a workplace right, had exercised such a right or had indicated that he proposed to exercise such a right.

[40] I have previously found that Mr Zarev’s employment ceased on 28 June 2013, which is, based on the abovementioned email from NTEU Membership, some seven months before Mr Zarev appears to have joined the NTEU. As such, it is difficult to sustain an argument that Mr Zarev was dismissed as a result of his membership of the NTEU. As to the contention that Mr Stubbs may have been coerced by Professor Cameron, the events relied upon by Mr Zarev in his written submissions to support that contention all appear to have occurred after 28 June 2013. In those circumstances, the contention is again difficult to sustain.

[41] Accordingly, I consider the merits of Mr Zarev’s application to be less than compelling.

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

[42] No views were expressed on this point. I therefore consider this factor to be a neutral consideration.

Conclusion

[43] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 11(Nulty) in the following way:

“[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.”

[44] Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the Commission granting Mr Zarev a further period within which to make his application under s.365.

[45] Accordingly, Mr Zarev’s application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

Z.S. Zarev on his own behalf.

M. Macpherson for the Respondent.

Hearing details:

2015.

Melbourne and Perth (telephone hearing):

December 11.

 1   Statement of Facts asserted and relied upon by the Employer at Attachment 1

 2   Ibid

 3   Form F8 – General Protections Application at Attachment A13

 4   Ibid at Attachment A12

 5   Ibid at Attachment A11

 6   PE PLND 4679 of 2014 The University of Western Australia and Zare Stefan Zarev

 7   Statement of Facts asserted and relied upon by the Employer at Attachment 5

 8   Ibid at Attachment 4

 9 (2010) 197 IR 403 at 408-409

 10   Form F8 – General Protections Application at Item 3.1

 11   [2011] FWAFB 975

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