[2022] FWC 2086
The attached document replaces the document previously issued with the above code on 8 August 2022.
Incorrect paragraph numbering has been amended.
Associate to Commissioner Yilmaz
Dated 8 August 2022.
| [2022] FWC 2086 [Note: An appeal pursuant to s.604 (C2022/5546) was lodged against this decision - refer to Full Bench decision dated 14 October 2022 [[2022] FWCFB 188] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Dr Jan Zirk-Sadowski
v
The University of New South Wales
(C2022/3039)
MELBOURNE, 8 AUGUST 2022 |
Application to deal with contraventions involving dismissal - application for confidentiality order denied - application made outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.
[1] On 19 May 2022, Dr Jan Zirk-Zadowski (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against the University of NSW (Respondent). The Applicant’s dismissal took effect on 6 July 2018, while still subject to a probationary period of employment.
[2] The Applicant lodged his application some 1400 days after the 21-day statutory time limit required under s.366(1)(a) and his extension of time application relates to s.366(1)(b) which allows for a further period where the Commission is satisfied of exceptional circumstances justifying the delay.
[3] The parties were issued with directions to file submissions and evidence for the extension of time hearing scheduled for 5 July 2022. The Applicant complied with those directions but also emailed my chambers on 1 and 30 June 2022 flagging that he was proposing that he would apply for “confidentiality orders prohibiting the publication of names and addresses of persons appearing in the hearing and matters contained in documents before the Fair Work Commission.” 1 The Applicant relies on s.594 of the Act for his application for confidentiality. Relevantly, s.594 of the Act concerns orders prohibiting or restricting the publication of evidence, names and addresses, matters contained in documents, and the whole or part of a decision. The Applicant has been informed that addresses of individuals of are not published in a decision. Further, the Applicant did not identify any confidential materials relevant to the extension of time application.
[4] The Applicant further contends the reason for confidentiality orders relates to s.26 of the Public Interest Disclosure Act 2013 (PID Act) which interacts with s.20 of the Act. Section 20 of the Act relates to meaning of ordinary hours of work for award/ agreement free employees. The Applicant was covered by an enterprise agreement, therefore s.20 of the Act is irrelevant to his employment and appears to be irrelevant to his argument for confidentiality.
[5] The PID Act concerns the investigation of allegations of serious wrongdoing in the Commonwealth Public Sector against public officials. In this extension of time application any matters concerning any proceedings, reports or queries that may or may not have been subject to the PID Act are not relevant. Given the nature of the request, the Applicant clarified during proceedings that his application concerns the de-identification of the parties.
[6] Section 593(2) of the Act provides that the Commission must hold hearings in public, except as provided by subsection (3). Subsection 593(3) of the Act allows the Commission to make orders if it is satisfied or is desirable because of the confidential nature of any evidence or for other reasons and lists those reasons. The Respondent did not object to the disclosure of the parties in a decision and did not identify any evidence that may give rise to a confidentiality order in this matter.
[7] The Applicant submitted that his evidence concerns his work on security data which may be classified information. He also states that prior proceedings in New South Wales, in the Federal Court and in other jurisdictions had de-identified him as a party because they had access to the material he describes as security classified. Consequently, he says, as his identity was not disclosed in the other proceedings, the Commission should do the same. There is no need to provide any detail concerning the work performed by the Applicant as this is immaterial to an extension of time application. Therefore, I do not consider it necessary to deidentify the parties.
[8] While I am not satisfied of the reasons to deidentify of the parties, I am mindful that the Applicant filed voluminous materials relating to his work, his complaints and other details which were unnecessary and/or immaterial to the matter before the Commission. I do not intend to address the material that is not relevant to the extension of time and this decision will not specify the nature of work performed by the Applicant nor provide detail of his prior proceedings against the Respondent.
[9] The Applicant further raised the prospect of embarrassment to him because of his allegations against the Respondent. The Applicant confirmed that he now resides in Europe, having departed Australia in December 2018. The prospect of embarrassment is therefore most unlikely on the basis that this decision will be of little or no interest in a foreign country. Further, in light common law authorities concerning non-disclosure orders, I am not satisfied the Applicant’s potential for embarrassment warrants a suspension of the principle of open justice.
[10] In Harry Day v John Smidmore and others (No. 2), a Full Bench of the New South Wales Industrial Relations Commission considered an application for a non-disclosure order to supress the identities of named persons in a published decision. In balancing the principle of open justice with the claims of distress or embarrassment, the Full Bench found as follows:
“...we do not consider that it would ordinarily be desirable to make a non-disclosure order only because a person was embarrassed or distressed by allegations made in proceedings. The paramount consideration, in our opinion, remains the principle of open justice. Non-disclosure orders, such as pseudonym orders, merely to protect persons from injury, hurt, embarrassment or distress would be inimical to the ordinary rule that courts should conduct their proceedings "publicly and in open view"... 2
[11] In Application by Corfield, Justin James¸ Commissioner Bissett summarised the principles set out in Smidmore as follows:
“As was explained in Smidmore, mere embarrassment, distress or damage by publicity is not a sufficient basis to grant such an application.” 3
[12] For the reasons stated above and in view of the principles enunciated in Smidmore and Corfield, I am not satisfied that the Applicant established sufficient grounds for the granting of a confidentiality order. Accordingly, the Applicant’s request for a confidentiality order was denied.
[13] I now turn to the Applicant’s extension of time application.
[14] The Applicant submits that there were no reasons for his dismissal in his letter of termination dated 6 July 2018. However, he submits that his employment was suspended after he communicated with external bodies without the Respondent’s permission in relation to concerns that he had relating to directions given to him in the workplace. He contends that his inquiries and complaints to external bodies was a workplace right, and his suspension was an adverse action. It is submitted that the Respondent contravened:
• S.340 of the Act. The Applicant provided in his application copious submissions and allegations against individuals which are unnecessary and inappropriate to detail.
• S.348 of the Act on the grounds that conduct of the Respondent relating to his Visa and the Migration Act constituted coercion and intimidation.
• S.351 Discrimination, based on sex the Applicant alleges conduct that constitutes bullying, harassment, violence and inappropriate behaviour
[15] The Applicant makes further allegations against the Respondent including underpayment of wages.
Respondent’s submissions
[16] The Respondent submits that on 6 July 2018 the Applicant was dismissed and was informed by a letter of termination issued on the same day. The Applicant’s employment was terminated during probation following a process conduced pursuant to clause 25 of the UNSW Australia (Academic Staff) Enterprise Agreement 2015.
[17] The Respondent contends that the application for an extension of time lacks sufficient reasons to meet the exceptional circumstances required and submits that the Commission should dismiss the application.
[18] General protections applications involving dismissal must be made within 21 days.
[19] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position
[20] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 4 where it was held that:
“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 regular occurrence, even though it can be a on 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.” 5
[21] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
[22] The general protections involving dismissal application was lodged with the Commission some 1400 days late, almost four years late. The Applicant was well aware that his dismissal took effect on 6 July 2018, was aware of the 21 day time limit and this application was a second application.
[23] The Applicant submitted another unrelated application in the state of New South Wales and relied on material contained therein. The Applicant contends that the delay in his application was due to his ill health which was found in a medical report that he suffers a 22% impairment. He further states that he had legal representatives in a personal injury claim, and because of their conduct his application in this matter was delayed. Other contributing reasons for the delay included the slowness of the Respondent to reply to his correspondence concerning his allegations of breach of the enterprise agreement and in other legal proceedings he submits that he was allegedly encouraged to wait for a reply or for further information.
[24] While many hundreds of pages of various documents and submissions were submitted, there was no evidence of the Applicant’s medical incapacity to file this application on time. In fact, the evidence demonstrates significant litigation by the Applicant against the Respondent in various jurisdictions on many fronts and this demonstrates that the Applicant was not only aware of the legal options open to him, but also his capacity to make decisions and action those decisions.
[25] I do not accept the Applicant’s argument that the Respondent contributed to the delay and the Applicant’s allegations of breach of enterprise agreement are unrelated to this general protection application. In respect to alleged representative error or contribution to delay, the Applicant confirmed that he did not receive advice from those legal representatives for a general protection application. Further, the Applicant was asked by the Commission to confirm the nature of the confidentiality agreement entered into, and he confirmed that no agreement was reached with the Respondent which would prohibit a general protections application, but rather his concern was whether his costs agreement limited his capacity to file other applications.
[26] The Applicant further contends that he received advice from the Conciliator in his first general protection application in 2018 that he may refile at a later date. No evidence was tendered to support this allegation, but nevertheless is highly implausible given the clear provisions concerning timeframe in the Act and Conciliators are well aware of the requirement as well as the high bar for a delayed application to be accepted.
[27] The Respondent submits the Applicant’s forum shopping is not an exceptional reason for the delay in the application. The Applicant denies he is forum shopping.
[28] There must be a credible reason for the delay. 6 I do not agree that the reasons submitted, of which there were many are exceptional, unusual, out of the ordinary, uncommon or special to justify an extension. There is a complete absence of evidence and the Applicant asserts that because he makes his submissions under oath that it is evidence. The materials submitted in support of the Application were largely irrelevant and allegations contained within the submissions were unrestrained.
[29] I am not satisfied that the Applicant has demonstrated credible reasons regarding this consideration, and therefore do not weigh in his favour.
[30] The Applicant filed a general protection application pursuant to s.365 of the Act on 7 July 2018 and withdrew on 21 September 2018 following participation in a conciliation conference. The Applicant submits the reason for withdrawing his application at that time was his concern about his Visa status in Australia. Despite his reason, the Respondent in all reasonableness could not have expected a further application almost identical to the first nearly four years after his dismissal, and this is despite the volume of applications in other jurisdictions.
[31] The Respondent listed nine applications filed by the Applicant over the period 2018-2019. These applications not only challenge the dismissal, but also matters pertaining to employment or personal injury. The list of active legal action against the Respondent includes the first general protection application. A further six applications were made in the period 2020 to 2022, including this application.
[32] This consideration is ordinarily intended to put the Respondent on notice of an impending application, however, in this matter, with the extraordinary level of litigation since 2018, even though the Respondent was in an active state of defence. The Respondent, certainly in all reasonableness would not have expected a reagitation of the same application that was withdrawn in 2018. This consideration in my opinion does not weigh in the Applicant’s favour.
[33] The Applicant contends there is no prejudice to the Respondent.
[34] The Respondent submits it would be prejudiced if the application was granted. The reasons for prejudice include the significant time that has lapsed since the dismissal, the individuals involved in the dismissal are longer working for the Respondent, the impact on staff that continue to defend themselves against what are described as repeated, misconceived and unfounded allegations against them, the significant financial cost already incurred and continues to be a cost associated with defending ongoing litigation by the Applicant. In addition, the Applicant seeks reinstatement to a position that was temporary and due to end in July 2019.
[35] I do find that the Application has the effect of causing prejudice to the Respondent. Much time has passed since the dismissal and change in staff is problematic to defend itself against the allegations. It is further unreasonable and unjustified to reagitate an application that had already been dealt with and withdrawn almost four years ago. This consideration therefore is not in the Applicant’s favour.
[36] The Applicant alleges that the Respondent contravened the general protections provisions of the Act as provided in paragraph [14] above. He makes further allegations that he was discriminated against because of his social heritage and for refusing to work with a document which he alleges was not only unlawfully given to him, but also precipitated the incursion of the litigation against the Respondent. He also relies on s.536D of the Act and the PID Act which has not been adequately explained in terms of relevance to his application.
[37] The Respondent submits that the reasons for the Applicant’s termination of employment was because he was unable to perform the duties and responsibilities of the role and it denies any contravention of the general protections provisions. It states that the document on which the Applicant relies to support his litigation did not contain alleged security classified information or actual data. It further states that the Applicant’s supervisor that was raising performance concerns was not aware of the concerns raised by the Applicant in relation to the document.
[38] In addition, the Respondent submits that allegations of wrongdoing of the Applicant’s supervisor and other staff were properly considered prior to the Applicant’s dismissal.
[39] Having considered the submissions and evidence tendered, I cannot conclude that the Applicant has a meritorious application. The Applicant’s history of litigation against the Respondent in what appears to be of such limited success does not provide any support for a meritorious application, particularly given that the foundations of the allegations are based on a document in contention between the parties. If the document is as described by the Applicant, evidence of successful prosecution in the last four years would, one would expect, indicate serious transgression on the part of the Respondent. Further if the document caused the alleged personal injury as described, the personal injury claims would, one would expect, to have found a workplace injury compensable to at least a moderate level for alleged injuries suffered by the Applicant.
[40] The only material provided by the Applicant was submissions with extraordinary allegations, references to litigation taken and the most moderate of resolutions. It is unclear why the Applicant is so fixated on agitating and reagitating claims that have not been successful, and reagitating a general protections application that has already been dealt with in the Commission and withdrawn post conciliation is not a proper use of the Commission’s processes. The Applicant does not reside in Australia, and it is a concern that the Applicant can initiate and reagitate litigation on the basis of claims that appear to hold little merit. Accordingly, I do not find that a consideration of the merits weighs in the Applicant’s favour.
[41] The Applicant submits that the delay has not caused any disadvantage or unfairness to the Respondent given that the Respondent was previously privy to the documentation submitted with his Form F8 when he made a personal injury claim. In his submissions, the Applicant referred to the lengthy wait times and delays that he experienced while pursuing other claims against the Respondent.
[42] The Respondent asks the Commission to consider the numerous applications before the Commission where extensions of time have been denied. It submits it would be grossly unfair to grant an extension of time given the length of the delay and what appears to be evidence of forum shopping by the Applicant.
[43] The Respondent is correct to refer to matters before the Commission as guidance. Taking into account the reasons and the length of delay together with the previous application in 2018, I find this consideration does not weigh in favour of the Applicant.
[44] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
[45] It is on the balance of the considerations that I have decided not to grant an extension of time. Admittedly, merit has not been tested but there is no evidence to suggest there is an arguable case based on the Applicant’s contentions and his lack of success in the vast unsuccessful litigation in the last four years since the dismissal. In the other considerations that I must take into account pursuant to s.366 (2) I have found not to favour the Applicant.
[46] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting a further period for the making of an application. Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
Dr J. Zirk-Sadowski on his own behalf.
Ms Kristine Thomas for the Respondent.
Hearing details:
5 July 2022
Melbourne (by video)
Printed by authority of the Commonwealth Government Printer
<PR744568>
1 Email of 30 June 2022 at 6:40pm from Dr Jan Zirk-Sadowski.
2 (2005) 149 IR 80; [2005] NSWIR Comm 406 at [32].
3 [2014] FWC 4887 at [32].
5 Ibid at [13].
6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.