Aran Spottiswood v Brand Collective Australia
[2024] FWC 1837
•29 JULY 2024
| [2024] FWC 1837 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aran Spottiswood
v
Brand Collective Australia
(U2024/6843)
| COMMISSIONER MIRABELLA | MELBOURNE, 29 JULY 2024 |
Application for an unfair dismissal remedy – extension of time not granted.
Aran Spottiswood (the Applicant) has made an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act). The Applicant was dismissed by Brand Collective Australia (the Respondent) from his position as Financial Accountant on 16 May 2024. Section 394(2) states that an unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or such further period as the Fair Work Commission (the Commission) allows pursuant to s.394(3). The 21-day period ended on 6 June 2024. The application was lodged on 14 June 2024 and was filed 8 days outside the 21-day period. In order for the application to proceed, the Applicant requires an extension of time.
The application for an extension of time was heard on 17 July 2024 by way of determinative conference.
Extension of time
The Act allows the Commission to extend time only if it is satisfied there are ‘exceptional circumstances’, taking into account the matters in s.394(3)(a) to (f). The meaning of ‘exceptional circumstances’ was considered and summarised in Nulty v Blue Star Group:[1]
‘[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.’
Background
The following background facts are not in dispute.
The Applicant has been convicted of a number of serious offences. On 19 November 2019, the Applicant pleaded guilty to one charge of involving a child in the production of child abuse material, three charges of sexual penetration of a child under 16, one charge of sexual assault of a child under 16 and one charge of possession of child abuse material (the sex offences).[2] The Applicant was sentenced to 4 years’ imprisonment with a non-parole period of 2 years. This sentence was upheld on appeal.[3]
On 25 February 2022, the Chartered Accountants Australia and New Zealand’s (CA ANZ) Disciplinary Tribunal issued a decision terminating the Applicant’s membership with CA ANZ.[4]
The Applicant applied for the role with the Respondent and signed the employment contract, on 23 June 2023, using the name ‘Alan Dry’. The Applicant’s legal name was and, at the time of writing, is Aran Spottiswood.
Relevant factors
The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[5]
As to the reason for the delay, the Applicant submits, amongst other things, that his dismissal provoked a mental health episode causing him to be in an unstable state. He says this diminished his ability to collate the necessary information and obtain legal advice, and that his life had become increasingly challenging around mid-April 2024 when his legal name, and therefore his past offending, was exposed, leading to a ‘difficult and anxious May and June.’
The Applicant provided some evidence of these claims in the form of a letter of attendance from his forensic psychologist, Dr Brooke Langskaill. The Applicant’s first appointment with Dr Langskaill was on 30 May 2024.
The Applicant submits that his termination placed him in ‘a debilitative and crippling state emotionally, and somewhat even physically.’[6] He says the circumstances surrounding his dismissal and the ‘final and most heavy blow’ of the actual dismissal placed him in an ‘extraordinary category of severity and uniqueness’ beyond that which would ordinarily be expected when someone suffers anxiety or depression after losing their job.
The ‘unique’ situation to which the Applicant is referring includes the background of court proceedings relating to the sex offences, his convictions of same and consequential repercussions, including cancellation of his membership with CA ANZ.
It is usual and expected that a convicted sex offender would experience negative media coverage and the loss of membership of a professional organisation, especially one whose membership rules stipulate that membership may be revoked where the member has been convicted of a criminal offence or they bring discredit upon themselves, the organisation or the profession of accountancy.[7] The Applicant says he felt humiliated. That, at the very least, is to be expected.
By order of the County Court of Victoria, the Applicant has been placed on the Sex Offenders Register for life.[8] Section 70F of the Sex Offenders Registration Act 2004 provides that the Victorian Registrar of Births, Deaths and Marriages must not register a change to a registered sex offender’s name unless such a change is approved by the Chief Commissioner of Police. There is no evidence that the Applicant has legally changed his name and he does not dispute that his legal name is Aran Spottiswood.
The Applicant says that the name Aran Dry, the name used to obtain employment with the Respondent and the name he used with the ‘most important people in [his] new life’, was his ‘preferred name’. That he preferred the name Aran Dry, which was not his legal name under which he was convicted of serious sex crimes involving penetration of a minor and the possession of over 1,800 images of child pornography, is not surprising. The Applicant in his own evidence refers to the ‘whole world’ that he had built around the name Aran Dry becoming unravelled. It is not unreasonable that the Applicant, a convicted sex offender, would lose the contacts he had made under his preferred name when such contacts discovered he was actually Aran Spottiswood and not Aran Dry.
The Applicant’s criminal convictions and the events from mid-April 2024 are not ‘extraordinary circumstances that engulfed’ the Applicant’s life as he claims. He is the architect of those circumstances. The Applicant is not a victim. He broke the law and was convicted of the sex offences. The position in which the Applicant found himself is the position that would normally be expected of someone in his circumstances.
The Applicant had created a false identity, in that he did not use his legal name, and he did so to avoid being known as a sex offender. It is not out of the ordinary that a person in his situation would be distressed that his actual identity had been exposed.
The Applicant’s own evidence is that from 30 May 2024 onwards, he was stabilised enough to finalise his affairs, but that he chose to prioritise Centrelink over an application with the Commission because he needed to process a Centrelink number as he had ‘run out of money’ and ‘needed to maintain the ability to eat and have shelter.’ The Applicant’s evidence is that he attended several meetings with Centrelink and submitted all necessary documents in a ‘long and onerous process’.[9] At the determinative conference, the Applicant seemed to contradict himself, saying he was able to complete the Centrelink process for registration and not the Commission lodgement process, because the former was less involved and easier than the Commission process.[10] I do not accept this evidence. The Centrelink process as described by the Applicant was quite involved and he was not so debilitated that he was unable to complete the numerous steps required for him to register, presumably for unemployment benefits, with Centrelink. This included attending meetings and submitting documents. The Applicant gave evidence that soon after his dismissal, he perused the Commission website and assessed information therein, including clarifying the relevant jurisdiction relating to an unfair dismissal remedy. That he had the capacity to research the law about the merits of his own prospective application illustrates that the Applicant was not so debilitated that he could not fill in an ‘Unfair dismissal application Form F2’ (the Form F2). The Form F2 filed with the Commission largely involved the completion and lodgement of an online form. As is evident from the Applicant’s actual Form F2, in addition to an effective tick-box process, the Applicant completed 2 written paragraphs. The Applicant’s own evidence confirms that he had capacity at least from 30 May 2024, before the 6 June 2024 expiry date of the 21-day period, and before he actually did file 8 days late on 14 June 2024.
Further, it is not credible for the Applicant to say that he prioritised his dealings with Centrelink over filing an application with the Commission because, amongst other things, he needed to eat and ‘have shelter’. In his oral evidence, the Applicant said that he had been living at the family home in Warrandyte with his mother since May 2024. He was therefore not homeless and presumably had access to food at his mother’s house.
Dr Langskaill’s letter does not state that the Applicant was not capable of filing an application with the Commission within time and does not explain the 8-day delay. This is unsurprising, given the fact that Dr Langskaill gave oral evidence that she was not familiar with the Form F2. Her letter states that she had prepared the letter ‘to briefly comment on his mental state over the past few months.’ She concludes the letter by saying that ‘[c]oupled with pre-existing afflictions, Mr Spottiswood’s decision-making was no doubt impacted as a result and the decision to pursue this claim and advocate for himself would have been an arduous task to execute.’
In oral evidence, Dr Langskaill was contradictory and at times guarded. It is difficult to conclude what her definitive assessment is about the Applicant’s capacity to lodge the application within the 21-day period and the time up to 14 June 2024 when he did file. At the determinative conference, Dr Langskaill, without having seen a Form F2, asserted on 3 occasions that the Applicant would not have been able to complete the Form F2 within time.[11] When presented with a copy of the Form F2, she was hesitant about the Applicant’s ability to file the Form F2 but, under further cross-examination, conceded that he had some ability to take steps to complete his unfair dismissal application before 30 May 2024 and to have finished completing it after 30 May 2024.[12] Under re-examination from the Applicant, Dr Langskaill again changed her position regarding the Applicant’s capacity.[13] The guarded demeanour, obfuscation and contradictory evidence does not give me cause to give any weight to Dr Langskaill’s evidence regarding the Applicant’s capacity to file either within, or outside, the 21-day period.
Additional reasons used by the Applicant to support his application to file out of time include that:
· He had to wait for the Respondent to give him information he had requested, including meeting notes relating to his termination,
· He had to wait for the Respondent to finalise his termination pay and payslip, and
· His ‘mental episode’ was at its most severe between 25 May 2024 and 30 May 2024.
Firstly, the documents the Applicant requested of the Respondent that related to his termination were provided to him on 20 May 2024, a few days after his termination and 3 days after he requested them. This did not affect the Applicant’s ability to file his application within time and does not explain the delay. In any case, these documents were not essential for the completion of the Form F2 and filing of same. The Applicant attached these documents to his application but did not refer to them in that application.
The issue of his termination entitlements and relevant payslips are not germane to an application made under s.394.
Even if the Applicant suffered a severe mental episode between 25 May 2024 and 30 May 2024 (which is not accepted), this does not explain why he filed his application 8 days out of time on 14 June 2024.
Having considered all the reasons that the Applicant has provided for the delay, I am not satisfied that the Applicant provided an acceptable or reasonable reason for any part of the delay. This weighs against an extension of time.
I consider subsections 394(3)(b), (c), (d) and (f) to be neutral matters: the Applicant does not dispute that he became aware of his dismissal when it took effect; he did not take any action to dispute his dismissal; there is no prejudice against the employer; and I do not find that there are any matters relevant to fairness between the Applicant and other people.
The Act requires me to take into account the merits of the application in considering whether to extend time (s.394(3)(e)). The competing contentions of the parties in relation to the merits of the application are set out in the materials, some of which are included below.
As to the merits, the Respondent submits that the Applicant has limited prospects of succeeding if granted an extension to file his application, whereas the Applicant submits the Respondent did not have valid reason to dismiss him.
The Respondent submits that the Applicant was dismissed for breaching clause 3.1(a) of the employment contract by misrepresenting to the Respondent that he was a CA ANZ member (the first reason) and for breaching clause 3.1(d) of the contract by failing to disclose that he had been convicted of an offence which would be incompatible with his duties of employment or the trust and confidence placed in the Applicant by the Respondent to perform his role (the second reason).
Regarding the first reason provided by the Respondent, the Applicant submits he did not misrepresent that he was a CA ANZ member. He distinguishes between being a CA ANZ member and being CA qualified and points to the job description which states, ‘You will be CA or CPA qualified accountant…’. He submits he is CA qualified, having obtained and provided to the Respondent a copy of his Graduate Diploma of Chartered Accounting (Graduate Diploma) from CA ANZ, and that it was just his membership subscription with CA ANZ that was cancelled due to his offending. He further submits that the Respondent had the ability to check his membership with CA ANZ and they did not do so.
I do not find the Applicant’s evidence convincing. It is not reasonable for him to imply he does not understand the difference between academic qualification and registration with a professional organisation. In the resume he provided to the Respondent, the Applicant uses the letters ‘CA’ in brackets after listing his degree as ‘Graduate Diploma of Chartered Accounting’. He says he used ‘CA’ to avoid confusion with the CPA organisation,[14] but relevantly he conceded he was not a member of CA ANZ. He used the description to give a false impression he was a member of CA ANZ. When questioned at the determinative conference, the Applicant was asked how membership of CA ANZ is obtained, and he obfuscated. He said that obtaining the Graduate Diploma automatically granted him membership, denied any further steps were required and denied knowing that he had to be accepted as a member to call himself a chartered accountant or CA.[15] This is not plausible. The Applicant’s degree was a prerequisite for membership, as is the requirement, amongst other things, for an applicant to be a fit and proper person.
The Applicant’s reasoning in this regard is breathtaking. I find that he did misrepresent that he was a member of CA ANZ and that he changed his name to avoid being known as Aran Spottiswood. He did not change his legal name, but conveniently uses his preferred name ‘Aran Dry’, and on his own evidence did so to create a ‘whole world’ in which his real identity was hidden.
Regarding the second reason, the Applicant submits the Respondent should have conducted a criminal history check on him if his offending was so important to them. He further submits that dismissing him on the basis of his criminal history is discrimination, that he had no interaction with minors in his role, and that he performed his role satisfactorily and therefore showed he could be trusted. Although he blames the Respondent for not conducting a background check regarding his criminal convictions, it is he who had confected a persona specifically to avoid identification as Aran Spottiswood.
He breached the by-laws of CA ANZ by bringing discredit to CA ANZ.[16] The decision of the Disciplinary Tribunal of CA ANZ specifically referred to the judgment and media references to the Applicant as a chartered accountant. His criminal history is a relevant factor that should not have been hidden from his employer.
The Applicant was likely in breach of clauses 3.1(a) and 3.1(d) of his employment contract. The Applicant did misrepresent that he had the qualification of a CA. He had in fact been disqualified and had his membership revoked. By using another name and obscuring his criminal history, the Applicant betrayed the trust and confidence placed in him by the Respondent. On the face of the record, the merits of the case are not strong.
Conclusion and disposition
Having regard to the matters I am required to take into account under s.394(3) and all of the matters raised by the Applicant, I find that there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied there are exceptional circumstances, there is no basis for me to allow an extension of time. Accordingly, the application for an unfair dismissal remedy must be dismissed.
An order to this effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr A. Spottiswood on his own behalf.
Ms S. Cheligoy of counsel for the Respondent, instructed by Lander & Rogers.
Hearing details:
2024
Melbourne (by video)
17 July
[1] [2011] 203 IR 1, [13].
[2] Director of Public Prosecutions v Howell (a pseudonym) [2020] VCC 1328.
[3] Director of Public Prosecutions v Spottiswood [2021] VSCA 146.
[4] Aran Spottiswood CA (Disciplinary Tribunal of Chartered Accountants Australia and New Zealand, Case No DT-1276, 25 February 2022).
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, [29]-[31].
[6] Exhibit A5, Court Book at 58.
[7] Aran Spottiswood CA (Disciplinary Tribunal of Chartered Accountants Australia and New Zealand, Case No DT-1276, 25 February 2022).
[8] [2020] VCC 1328, [49].
[9] Exhibit A5, Court Book at 58.
[10] Transcript of the determinative conference on 17 July 2024 (Transcript) at PN497-499.
[11] Transcript at PN234, PN239, PN240.
[12] Transcript at PN284-285.
[13] Transcript at PN344.
[14] Transcript at PN183.
[15] Transcript at PN146-157.
[16] Aran Spottiswood CA (Disciplinary Tribunal of Chartered Accountants Australia and New Zealand, Case No DT-1276, 25 February 2022).
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