Chantelle Cheatle v Commonwealth Bank of Australia

[2023] FWC 3305

[2023] FWC 3305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Chantelle Cheatle
v

Commonwealth Bank of Australia

(U2023/10595)

DEPUTY PRESIDENT ROBERTS SYDNEY, 12 DECEMBER 2023

Application for unfair dismissal remedy

1. On 27 October 2023, Ms. Chantelle Cheatle (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) with the Fair Work Commission (Commission). The Applicant’s former employer and respondent to the application was the Commonwealth Bank of Australia Ltd (Respondent). The Respondent objected to the application on the basis that it was made outside the 21-day time limit prescribed by s.394(2) of the Act. The Respondent also claimed that the Applicant’s dismissal was a case of genuine redundancy and could not therefore constitute an unfair dismissal.[1]

1. Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a). It was not in issue between the parties that the application was made outside the 21-day time limit. I am satisfied that it was made outside that time limit. The Applicant has asked the Commission to exercise its discretion to extend the time limit under s.394(3) of the Act. That course was opposed by the Respondent. This decision deals with the question of whether or not the time for the making of the application should be extended.

Background

1. The Applicant commenced her employment with the Respondent in April 2020. In August 2021 the Applicant commenced a secondment in the position of “Experience Researcher” within the Respondent’s Retail Banking Services business unit (RBS unit). In January 2022, she was employed in that position on an ongoing basis and entered into an employment agreement to reflect that arrangement.

1. The title “Experience Researcher” is a business title used by the Respondent to identify an employee’s current role or position. The Respondent also uses “job profile” titles for its employees. These latter titles are used to determine the salary range and grade of employees. In the Applicant’s case, her job profile title was “Junior UDX Researcher”.

2. On 26 July 2023, the Applicant was issued with a letter advising her that the Respondent was considering making changes to the RBS unit, that her position as Junior UDX Researcher may become redundant effective 10 August 2023, and that her employment would end on 21 September 2023 if she were not redeployed by that time.

1. On 10 August 2023, the Respondent gave the Applicant a letter saying that the proposed changes would be implemented, that the Applicant’s position of Junior UDX Researcher would be made redundant, and that the Applicant would be engaged for a further 6 weeks to explore possible redeployment opportunities. The letter said that if the Applicant were not redeployed by 21 September 2023, her employment would come to an end on that date.

1. There was no redeployment of the Applicant, and her employment came to an end on 21 September 2023.

Contentions

1. The Applicant said that there was a discrepancy between the role she understood she was employed in under her employment contract, Experience Researcher, and the role that was made redundant, Junior Experience Researcher.[2] She said she made multiple requests of the Respondent to provide her with a copy of her employment contract (amongst other documents, including payslips) and that her requests were refused. The Applicant said that the refusal of the Respondent to provide documents, in particular the employment contract, was the reason why her application was filed out of time as she understood that it was necessary for her to have the documents for unfair dismissal proceedings.

1. The Respondent said that aside from a request for payslips and a retrenchment quote, which were provided on the same day as they were requested by the Applicant, there was no request made by the Applicant for employment documents, including the employment contract and no refusal to provide documents. The Respondent said that even if it were assumed that such requests were made and refused, this did not explain why the Applicant waited until 26 October to contact the Commission and 27 October 2023 to file the application. The Respondent said there were no exceptional circumstances justifying an extension of time.

Legislation

1. Section 394 of the Act provides that the Commission may allow a further period for an application for an unfair dismissal remedy to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the following matters:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

1. I deal with these criteria below.

Reason for the delay

1. The Applicant cited the request for documents and the refusal to provide them as the reason for the delay. The Applicant was unable to identify when such requests were made. She said she made telephone calls on 3 occasions prior to the lodgement of the application about her job title and rostered day off payment issues but did not know which of these calls related to her job title. She said she made ‘multiple inquiries’ of a manager, Ms. Ives, but was unable to say when these inquiries were made. The Applicant also said she “contacted HR” on multiple occasions asking for her employment contract and payslips, neither of which had been received by her by 30 November 2023. Again, she was unable to say when these inquiries were made.

1. The Respondent gave evidence through Ms. Ives, Chapter Area Lead, Human Centred Design and Ms. Armstrong, Team Manager HR Direct. Ms. Ives said she did not receive any request from the Applicant for employment documents, including the employment contract. She said she told the Applicant on 10 August 2023 that she could request material relating to her redeployment by following a certain process. Ms. Ives also gave evidence about a Microsoft Teams chat exchange with the Applicant on 11 and 13 August 2023 which was as follows:

Applicant: Hi Lou, I just noticed something on my redundancy letter my title is referred to as 'Junior UXD Researcher' however on my employment contract I am employed as an 'Experience Researcher'. Will this need to be updated and how will it affect me?

Ms. Ives:  Hey Chantelle, looks like the title on your redundancy letter is referring to the Job Profile label, but on your contract your Business Title. They are both referring to the same level/profile so there is no change needed or impact to you/the outcome. Hope that helps, Lou

Applicant: Thanks for sending that over Lou!

1. Ms Armstrong gave evidence about the HR Team’s interaction with the Applicant based on case records held by that team. She said all inquiries to the HR Team are logged in the Respondent’s record keeping system. Ms. Armstrong’s evidence was that according to the Respondent’s records, the Applicant contacted an HR consultant on 11 August 2023 and asked how to view her employment contract on the Respondent’s intranet. The records indicated that the Applicant was guided through the process on that day. There was evidence of two other calls from the Applicant on the same day. According to the Respondent’s records, the Applicant made an inquiry with the HR Team about the difference between her business title and job profile which was explained to her and which the Applicant indicated that she understood. Ms Armstrong said that the Respondent’s records also showed that the Applicant made an inquiry about her termination pay and requested copies of her pay slips and retrenchment quote on 22 September. There was evidence that these latter documents were sent by email to the Applicant on the same day.

1. I accept the evidence given by the Respondent’s witnesses about these events. The evidence was unchallenged. There were email records of the redundancy correspondence being provided on 26 July and 10 August. The reference in the correspondence to the position of Junior UXD Researcher formed the basis of the Applicant’s inquiries. The Applicant was clearly provided with this information. Contrary to the Applicant’s assertion that she had not been provided with payslips by 30 November, the email records and evidence show that she was provided with these on 22 September. I am also satisfied that there were no repeated requests made for the employment contract and no refusal to provide it by the Respondent. The evidence supports the conclusion that the Applicant was provided with access to it on 11 August 2023 and an explanation about the two job titles on the same day, which explanation she indicated she understood. On that day she made the same inquiry of Ms. Ives and, on 13 August, was given the same explanation which she accepted. There is no basis to conclude that the issue was ever raised after that. I do not accept that there was a request and a refusal to provide documents or that this explains why there was a delay in the filing of the application.

1. Even if the Applicant had been denied access to her employment contract, this would not, in the circumstances, provide a complete or acceptable explanation for the delay in bringing the application. The Applicant was aware by at least 11 August, that is, well before her termination took effect, that there was a discrepancy between her title in that document and the description of her position in the redundancy correspondence. She was provided with an explanation from two different sources from within the Respondent. This included a written explanation from Ms. Ives that confirmed it made no difference to the outcome. In any event, the absence of the contract did not prevent an application being made. The Applicant said she was “led to believe” that she was required to have this document as evidence of unfair dismissal. She did not say where the belief came from. There was no evidence from the Applicant that she took any steps to inquire about what was necessary for an application to be made until she contacted the Commission on 26 October 2023. By then, the application was out of time. Had she taken steps to file the application earlier, she would have found that the application could have been made without providing the contract at the same time.

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3] Here, the reason for the delay provided by the Applicant does not weigh in favour of a conclusion that there are exceptional circumstances justifying an extension of time.

Whether the Applicant first became aware of the dismissal after it had taken effect

1. The Applicant was made well aware of her dismissal in the process leading up to the termination of her employment. The situation was explained in writing and in meetings between the Applicant and the Respondent’s representative. The Applicant knew her employment would end on 21 September 2023 if she was not redeployed and her employment did end on that date. She was not made aware of the dismissal after it had taken effect. This is a neutral consideration here.

Action taken by the Applicant to dispute the dismissal

1. The Applicant said that she made two telephone calls to the Respondent between the date of her termination and the date the application was filed. She said she could not recall whether the calls related to the difference in job title or an inquiry about rostered day off payments. Neither of those could be regarded as disputing the Applicant’s dismissal. The Applicant did take steps prior to her dismissal to raise inquiries about her job title. This occurred in advance of the dismissal and was not a challenge to the foreshadowed dismissal itself. The Respondent said that the Applicant requested an extension to her redeployment period after close of business on 21 September 2023 and was told the next day this would not be granted. The Applicant did not refer to or rely on this request. I am of the view that this request did not amount to the Applicant disputing her dismissal. The Respondent submitted that there was no action taken by the Applicant to dispute the dismissal. There is insufficient evidence to conclude that the Applicant took steps to dispute her dismissal prior to the lodgement of the application. There is nothing under this heading that weighs in the Applicant’s favour.

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

1. The Respondent accepted that there was no prejudice to the Respondent in granting an extension, but submitted that absence of prejudice was an insufficient basis on which to grant an extension of time. I accept that submission. The absence of prejudice is a neutral consideration here.

Merits of the application

1. The basis on which the substantive application for unfair dismissal is advanced is unclear. The Applicant simply asserted that the title of Applicant’s position in her employment contract did not match the title in the redundancy correspondence. There was a cogent explanation for that difference provided to the Applicant at the time of her inquiry. There was nothing to indicate that it made any difference at all to the treatment of the Applicant or the ultimate outcome. That difference in a title description, without more, and having regard to the explanation for it, provides no basis for an unfair dismissal proceeding.

1. Moreover, the dismissal occurred over a period of months as part of a redundancy process. The Applicant did not call into question the legitimacy of the decision to make her position redundant. So far as can be seen from the evidence, that process involved advanced notice, consultation, attempted redeployment and an offer to provide external support. Ms. Ives gave evidence that at least two other employees within the same work areas as the Applicant were made redundant at the same time, as were dozens of others within the broader RBS unit. Even though she questioned the description of her position in the redundancy correspondence, the Applicant’s own evidence shows she accepted that her position was made redundant, and that that was the reason for the termination of her employment. There was nothing to suggest that the Applicant took issue with the termination on the basis that redeployment would have been reasonable[4] or that the employer had not complied with the requirements of the relevant industrial instrument to consult about redundancy.[5]

1. It is unnecessary to embark on a comprehensive consideration of the substantive case here. However, the available evidence points strongly to the conclusion that the Applicant’s dismissal was a case of genuine redundancy. A person can only be unfairly dismissed if the Commission is satisfied that the dismissal was, amongst other things, not a case of genuine redundancy.[6]

1. In my view, the application for unfair dismissal is misconceived and without merit. This weighs against a conclusion that there are exceptional circumstances warranting an extension of time.

Fairness as between the Applicant and other persons in a similar position

1. The Respondent pointed to other employees who had worked with the Respondent who had also been dismissed in similar circumstances and at the same time as the Applicant. They said there were no exceptional circumstances distinguishing the Applicant’s situation from those of others, and that it would be unfair to extend time for the Applicant in circumstances where others had ceased to be eligible to bring an application.[7] There was no suggestion that others in the Applicant’s situation had brought an unfair dismissal application, either within time or out of time. I regard this as a neutral consideration here.

Conclusion – Exceptional Circumstances

1. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[8] Exceptional circumstances may 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 can be considered exceptional. ^[9]  

1. Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time. 

1. The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

[1] See section 385 of the Act.

[2] Referred to as “Junior UXD Researcher” in the redundancy correspondence dated 26 July and 10 August 2023 – Annexures A and B to Exhibit R2.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[4] See s.389(2).

[5] See s.389(1)(b).

[6] See s.385(d).

[7] Citing Cuthbertson v. Roper Gulf Shire Council[2013] FWC 2644 at [32].

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

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