Hans Wai v Open Universities Australia Pty Ltd
[2023] FWC 3402
•19 DECEMBER 2023
| [2023] FWC 3402 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Hans Wai
v
Open Universities Australia Pty Ltd
(C2023/6525)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 19 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – late lodgement – earlier unfair dismissal claim discontinued – whether materials filed by employer in unfair dismissal litigation reasonably explain the delay – prejudice – no exceptional circumstances – time for late lodgement not extended – application dismissed
On 22 October 2023 Hans Wai (Mr Wai or the applicant) made a general protections application under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with his dismissal.
Mr Wai’s application is against his former employer Open Universities Australia Pty Ltd (Open Universities, the respondent or the employer), which he alleges committed the contraventions.
The respondent opposes the application. It filed a response on 3 November 2023 raising a jurisdictional issue. It claims that the application is out of time and that time should not be extended.
Mr Wai acknowledges that the application is out of time (by 86 days) but submits that exceptional circumstances for the late filing exist and that time should be extended.
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the out of time issue if Mr Wai’s application is to proceed further.
I issued directions on 15 November 2023.
I heard the out of time matter by video on 6 December 2023.
Mr Wai was self-represented. I granted permission for Open Universities to be legally represented.[2] Consistent with my independent statutory role, I provided a measure of assistance to Mr Wai during the hearing to ensure that his case was presented and that of the respondent tested.
I heard evidence from three persons:
· Mr Hans Wai (applicant);
· Ms Andi Saunders (Chief People Officer); and
· Mr Tony Kovacevic (Head of Data and Analytics).
This decision concerns the extension of time question only.
Facts relevant to the extension of time are generally not in dispute save in limited areas, such as Mr Wai’s position title and whether the promotion of another employee (Mr Allen) had been secretly withheld from Mr Wai until the unfair dismissal proceedings. I deal with these issues in the body of this decision.
That aside, significant disputes exist over the conclusions to be drawn from relevant facts. Even more significant disputes concern merit, which are not the subject of concluded findings in this decision.
Facts
Open Universities
Open Universities is a not for profit digital market place which facilitates the provision of higher education via an online platform. Universities list their courses and students enrol in courses (including single subjects) in lieu of direct study with a particular university.
Open Universities is not a small business within the meaning of the FW Act. It employs approximately 175 persons.
Given the online nature of its business, a material element of operations is its digital capability. It operates a Data and Analytics group. This group includes (amongst others) data engineers and analytics engineers.
Mr Wai
Mr Wai commenced working for Open Universities on 7 February 2011. After working as a Student Advisor (Outbound) and then a Forecast and Schedule Analyst, in July 2015 he became a Campaign Reporting Analyst.
Whether Mr Wai retained this title at the date of dismissal or, as he contends, was titled as a Data and Insights Lead is in dispute. Titles aside, it is not disputed that in about 2019 Mr Wai moved to the (then) Optimise Team and came to subsequently report to Mr Kovacevic.
Nor is it in dispute that in about September 2022 tensions emerged between Mr Wai and a manager, leading to Mr Wai lodging a complaint with Open Universities that required mediation by Mr Kovacevic.
Restructures November 2022 and June 2023
In November 2022 a restructure of operations occurred. Mr Wai was moved to the Data Discovery team and continued to report to Mr Kovacevic who was Head of Data and Analytics.
Around this time a Data Engineer (Mr Pradham) left. Open Universities recruited for a replacement. Although advertised internally, Mr Kovacevic did not consider that internal persons had the requisite skillset for the role. Mr Kovacevic considered that a Data Engineer needed experience in “creating or rebuilding new data pipelines and the supporting cloud infrastructure”.[3] He did not consider Mr Wai suitable because he believed Mr Wai’s skills were “limited to descriptive and diagnostic reporting and maintenance of existing data pipelines”.[4]
The search extended externally. A Mr Davies was appointed in March 2023.
In March 2023 Mr Kovacevic promoted an Insights and Quality Analyst (Mr Allen) to the role of Analytics Engineer. This was announced on 6 April 2023.
In May 2023 Mr Kovacevic proposed further changes to the Data Discovery group (and a related VoC group). He considered that one Analytics Engineer was not sufficient. He proposed recruitment of a second Analytics Engineer. He also proposed a new position of Learner Demand Insights Lead. He secured senior management approval for the proposed restructure in June 2023. The position of a further Analytics Engineer was advertised externally in July 2023.[5]
As part of the redesign, Mr Kovacevic also proposed some redundancies, including the position held by Mr Wai.
Redundancy
Mr Kovacevic and a Ms Johnson (Head of People Experience) met with Mr Wai on 27 June 2023. They spoke from a prepared script. Mr Wai was informed of the proposed group restructure and the intended redundancy of his position. Some limited discussion occurred in relation to potential redeployment options.
The redundancy was due to take effect on 7 July 2023.
A second meeting with Mr Wai was held on 28 June 2023. Formal confirmation of redundancy was given by letter dated 28 June 2023. Following that meeting, on 30 June 2023 Mr Wai wrote to Ms Johnson asking to see copies of the proposed new role. Ms Johnson replied that the roles had been approved in principle, but that job descriptions were not yet finalised.
A third meeting with Mr Wai was held on 4 July 2023. It was a lengthy meeting (which Mr Wai attended with a support person and recorded, unknown to the employer). A transcript is in evidence.[6] Mr Wai probed and questioned the proposed restructure and in particular why his skills were not seen as applicable to the new or existing roles.
Towards the conclusion of the meeting Mr Wai indicated that he proposed to submit in writing for consideration some options or alternatives. Mr Wai was informed that he could do so (by the end of that same day) and that his response would provide guidance to the employer’s thinking, but that the redundancy would go ahead as planned as “the consultation process has closed”.[7]
In the late afternoon of 4 July 2023 Mr Wai wrote to Open Universities proposing further alternatives by way of redeployment.[8]
On 5 July 2023 a response was sent to Mr Wai indicating that the alternatives he suggested were not viable or suitable, and that the redundancy would proceed as planned on 7 July.[9]
On 7 July 2023 Mr Wai’s employment ended by redundancy. He was paid in lieu of notice, paid a redundancy amount and provided access to outplacement services.
Unfair dismissal claim
Mr Wai sought legal advice concerning his redundancy. He obtained advice from solicitors Douglas & Associates.
On 25 July 2023 Mr Wai’s solicitors filed an unfair dismissal claim in the Commission under s 394 of the FW Act (U2023/6798).
The employer responded on 14 August 2023. The employer contended that Mr Wai’s dismissal was not unfair as his employment had come to an end by way of genuine redundancy within the meaning of s 389 of the FW Act.
The unfair dismissal application was allocated to Commissioner Cirkovic. The Commissioner issued directions on 18 September 2023 requiring the filing of materials by Open Universities by 4 October 2023 and Mr Wai by 18 October 2023.
The employer filed materials on 4 October 2023, including an amended response, a statement by Ms Johnson and statement by Mr Kovacevic.
On 8 October 2023 Mr Wai wrote to Commissioner Cirkovic as follows:[10]
“Dear Commissioner,
Thank you for your time on case U2023/6798 so far. As advised previously, I (the Applicant Hans Wai) have opted to represent myself.
The Respondent (OUA) submitted their Jurisdictional Objection with evidence/witness statements on Oct 4th 2023. I have read over these documents and noticed a startling internal discrepancy that I wanted to bring to your attention immediately for two reasons:
- It may change the nature of my case dramatically (I intend to seek legal advice immediately from the resources listed on the Fair Work Commission website)
- I felt it best to keep the Fair Work Commission updated with a timeline of my actions at earliest opportunity
I’ll try to be very brief and rely on uncontested facts, since I understand this case is still scheduled for a Member Assisted Conciliation and is not yet at a stage where deep assessment of case merits is taking place yet.
The Respondent and I are in agreement on these points:
1. During my redundancy, the Respondent advised it was related to the need for ‘new’ roles
2. The consultation was closed before I was informed what the new roles were (the role names or descriptions / selection criteria)
3. When I asked for information on these new roles, I was advised documentation was not ready because they “were approved in principle and not yet published”
4. There was an additional meeting (Informal Meeting) during which the roles were verbally described to me (Analytics Engineer and Learner Design Insights Lead) (but no documentation was provided despite request and here I’ll flag an important contested point that the verbal description proved to be inaccurate once roles were advertised)
5. New information in the Respondent’s submitted evidence show that at the same time I was being advised I could not see documentation for the ‘new’ Analytics Engineer role, another employee had already been promoted to this role! Both Ms Johnson’s and Mr Kovacevic’s Statements confirm this, though I notice this was not included in the Jurisdictional Objection Outline or Amended OUA Response Form 3.
6. That someone was somehow already promoted to a role that was not yet approved was not disclosed to me, during the consultation and not until now (and it concerns me that this key information appears in the witness statements but seems left out of the other documents). In fact Mr Kovacevic’s statement appears to contain a contradiction where it is advised the new roles were not approved until 19 June 2023, but also that an employee had already been promoted to the role several months ago! There is no date specified for when that promotion took place, but just to double check what I was reading wasn’t mistyped, I searched for the employee in question (Peter Allen) on LinkedIn and it seems to confirm the above, his profile indicates he became an Analytics Engineer some time in March 2023 - I’ve attached it at the end of this document too for convenience
7. To me this suggests strongly that the ideation for these redundancies occurred far earlier during 2023 (eg how could someone have been appointed to the ‘new’ role in March 2023 if the planning did not start until May 2023 and the approval did not happen until June 2023?) The reason this is of critical relevance to me is that I raised a complaint about a manager around September 2022, and this new earlier timeline now forms a connection in my mind (and a few other mistreatments during the year, but I won’t get into that now)
Forgive me Commissioner, I know this is not meant to be the time to make deep assessments but, even reading through the Respondent’s submissions at a superficial face value - I believe the new information is significant enough that it may substantially change the nature of my case.
All four of the employees in Mr Kovacevic’s group who were made redundant were minorities (myself and a female made redundant are of Asian origin, the two others are of Indian origin). This was notable to me at the time of my redundancy, but I did not consider that alone to be sufficient proof of racial bias because there was one Junior Data Engineer left in the team is also of Asian origin and appeared unaffected by the changes.
However now that I’m aware that another employee (who shares Mr Kovacevic’s racial/gender background) had already been promoted into a position that I was not even allowed to see the details of, and before that role had even been designed or approved - this just seems like disturbingly favourable treatment. This would also mean the aforementioned Junior Data Engineer was also arbitrarily not informed/considered for that opportunity.
I’m seriously questioning if this new evidence of distinctly preferential treatment of some staff, contrasted with the mistreatment of others, combined with a new timeline connection to a complaint I had raised, mean my case should actually be ‘Dismissal Under General Protections’
I am aware the Commission does not have the power to change an Unfair Dismissal claim into a General Protections claim, and that I would have to withdraw my current claim and submit a new ‘Dismissal Under General Protections’ claim with a request for time extension. I know the overall success rates for these time extensions requests is low, and after much searching on the Fair Work Commission website I was still unable to find a similar case - namely a precedent where it appears the Respondent has submitted evidence that (to my mind at least) surfaces further actionable behaviour against themselves. My hope would be that the 21-day timeline would actually recommence from when this new information was surfaced (especially since the redundancy business case documentation, position descriptions and skills matrix documents were things I specifically requested during my redundancy and it was withheld from me until now), similar to if an employer was found to have re-advertised the same position from a redundancy, but I understand all these matters are complex.
At this point, I haven’t made a decision yet what to do - I feel like I very much need to speak with a legal expert first and I’ll seek to do so immediately, first thing tomorrow. I just wanted to advise you at earliest opportunity so there’s a timeline record of what I’ve found and the actions I may need to take, and to give some advance notice if that helps. I appreciate you must remain impartial and likely cannot give me guidance one way or another.
Thanks for your time,
Hans Wai” (footnotes omitted, emphasis in original)
As foreshadowed in his email, Mr Wai sought professional advice on whether to proceed with his unfair dismissal claim or file a late general protections claim.
He contacted Job Watch on 9 October 2023 and obtained advice to the effect that discontinuing the unfair dismissal claim and substituting an out of time general protections claim was risky and that an alternative might be to continue the unfair dismissal claim and file a later Human Rights Commission claim on the discrimination aspects.
Mr Wai wanted a legal practitioner to separately provide advice to him. He did not consider that he could afford to again engage Douglas & Associates. Via the Commission’s free Workplace Advice Service, a week later on 16 October 2023 he met with Jewell Hancock solicitors. He obtained advice from a solicitor.
Mr Wai’s evidence[11] was that the advice he received from Jewell Hancock largely mirrored that of Job Watch.
On 20 October 2023 Mr Wai discontinued the unfair dismissal proceedings.
Mr Wai’s evidence was that:
“I received a suggestion from Job Watch that because the approval rate for Fair Work time extension requests is statistically low, one option would be for me to continue by Unfair Dismissal case, then pursue a separate case with the Australian Human Rights Commission. Jewell provided advice that while this might be possible, it may be considered a multiplicity of cases which is general discouraged in the legal system. I considered my options and ultimately decided that it was not for me to predict what Fair Work may or may not decide based on probabilities - and to do seemed rather cynical.”
On 22 October 2023, under his hand, Mr Wai filed a general protections application involving dismissal under s 365 of the FW Act (the current application).
The general protections application contends that Mr Wai was dismissed on account of exercising two workplace rights: firstly, the right to have made a complaint against a manager in September 2022, and secondly the right to not be discriminated against on the ground of national extraction.
In his general protections application Mr Wai acknowledged that the application is out of time but provided the following explanation:
“Please find below a request for a time extension for a general protections involving dismissal claim, this claim is a follow-on from an original unfair dismissal claim (U2023 6798) which was active until the 20 October 2023 when I discontinued it to raise this application, due to new information the Respondent sent to both the Applicant and the Commission on 4 October 2023.
I am only possess a layperson’s understanding of Fair Work processes, however my understanding is that time extensions are assessed based on 5 key criteria. I will address each of these below, and for the most part I will attempt to rely on the evidence the Respondent has already submitted themselves for (U2023 6798) for simplicity and to avoid contest, and I’ll note which originates from their evidence and which is from my own evidence.
The reason for the delay
Overview:
1. The Respondent submitted new evidence to the Fair Work Commission on the 4 October 2023 as part of an Unfair Dismissal case (U2023 6798), this new evidence included documents/details previously requested but withheld from the Applicant. This new evidence gave rise to a General Protections Claim, and so the Applicant discontinued the Unfair Dismissal claim on the 20 October2023 and lodged this General Protections claim on the 22 October 2023.” (emphasis in original)
Mr Wai then provided lengthy grounds on which the extension is sought.
Open Universities responded to the general protections claim on 3 November 2023 opposing the application including on the ground that it is out of time and that time should not be extended. Open Universities also contend that dismissal did not occur for either of the prohibited reasons asserted by Mr Wai.
Consideration
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
It is not in dispute that Mr Wai is eligible to make a general protections application. He is a person who has been dismissed. The dismissal took effect on 7 July 2023.
Section 366 provides a time limit for filing applications:
“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.”
Having been filed on 22 October 2023 the application is 86 days out of time.
I now consider whether an extension of time should be granted.
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[12]
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[13] A decision whether to extend time under s 366(2) involves the exercise of a discretion.[14]
I apply s 366(2) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”[15]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[16]
I now consider each of the factors in s 366(2).
Reason for delay (s 366(2)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might favour granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[17] The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.[18]
However, a reasonable explanation for the delay is not needed for the whole of the period of delay, or may in fact not be required at all, if the circumstances are otherwise exceptional.[19] The period of the delay requiring explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether an explanation for the delay is acceptable or credible.[20]
In this matter, the delay period is the eighty-six days from 29 July 2023 to 22 October 2023 inclusive.
I now consider the reasons advanced by Mr Wai.
For the purposes of analysis, the delay comprises three separate periods:
a 68 day period from 29 July to 4 October inclusive when Mr Wai was pursuing an unfair dismissal claim;
a 16 day period from 5 October to 20 October inclusive when, after receiving materials filed by the employer, Mr Wai took advice as to whether he should discontinue the unfair dismissal claim and make a general protections application; and
a two day period after Mr Wai discontinued his unfair dismissal application on 20 October when Mr Wai prepared and then filed this general protections application.
In respect of the first period of delay Mr Wai was actively and attentively pursuing his unfair dismissal claim in the Commission. He had filed that application within twenty-one days of dismissal and had participated in conciliation and directions proceedings.
Of relevance though to subsequent events is that before filing the unfair dismissal claim Mr Wai researched (including online) his rights to challenge the termination under the FW Act and sought and obtained the benefit of independent legal advice. Those statutory rights included the right to pursue actions under either s 394 (unfair dismissal) or s 365 (general protections).
I find that Mr Wai made a forensic decision to make an unfair dismissal application, after taking independent legal advice. That Mr Wai did so weighs somewhat against this period reasonably explaining the delay.
The primary explanation for the delay, and the central basis on which this extension of time decision turns, is Mr Wai’s proposition that only after the employer filed materials on 4 October 2023 could he have reasonably formed a view that his dismissal was adverse action taken against him for having exercised workplace rights, in breach of the statutory general protections against unlawful dismissal.
There are two elements to this explanation: firstly, that relevant information was withheld from Mr Wai which only came to his knowledge in the employer’s materials filed on 4 October 2023; and secondly, that the information reasonably led Mr Wai to conclude that he had been unlawfully (as distinct from unfairly) dismissed.
I deal with each of these issues.
The materials filed by Open Universities on 4 October provided more detailed particulars and evidence as to the basis on which the employer asserted that the dismissal was a genuine redundancy and not unfair. The materials were in response to a direction by Commissioner Cirkovic that the employer file such materials. Neither the direction by the Commissioner nor the materials filed were unorthodox. It is not unusual in unfair dismissal proceedings that amended responses or witness statements provide a deeper level of insight into the state of mind of the decision maker or relevant events associated with decisions to dismiss, or documents on which the employer relied.
Mr Wai’s explanation is not that the materials filed were unorthodox but that they contained information that had been deliberately withheld from him. He points in particular to a document attached to the witness statement of Mr Kovacevic which he describes as a skills matrix, a job description, and the statement of Mr Kovacevic that Mr Allen had been appointed an Analytics Engineer in March 2023.
In relation to the first of these matters, Mr Kovacevic’s witness statement attached a slide pack which he and Ms Johnson used when presenting the proposed restructure (and redundancies) to senior management at a meeting on 20 June 2023.[21] Although the document referenced by Mr Wai is not described as a skills matrix and is more in the form of slides about the proposed group redesign, it contains some information about the positions and skills Mr Kovacevic believed he required in his work group going forward.
Mr Wai submits that this information was withheld from him in the three redundancy meetings he attended. It is correct that the slide pack presented by his manager to senior management in June 2023 was not provided to Mr Wai at any of the three meetings. It is also correct that at these meetings Mr Wai sought information about the rationale for the redundancy. However, a consultation package was provided to Mr Wai after the first meeting.[22] Further, the transcript of the 4 July meeting shows that discussion of these issues was extensive and, although not to the satisfaction of Mr Wai, it covered key elements of the proposed group restructure. There was no obligation on Mr Kovacevic to provide Mr Wai with the documentary material that had been prepared for senior management approval. I do not find that the failure to do so materially misled Mr Wai as to the true reason for his termination.
I make a similar finding in relation to the job descriptions Mr Wai sought. The proposed roles were discussed (including at the 4 July meeting) and Mr Wai was not relevantly misled when told that the formal job description for a to-be advertised new role had not yet been finalised. In making this finding I do not express any view as to the adequacy of the information provided by Open Universities to Mr Wai or whether the employer should have, in fairness, been more openminded in response to his questioning and suggestions about redeployment. It is clearly arguable that the employer ought to have done so and that it imposed unreasonably tight timelines on Mr Wai at the final meeting. However, those are matters that relate to fairness, not lawfulness.
In relation to the promotion of Mr Allen, the evidence is that the promotion was referenced by management in a slide presentation at an all-staff meeting on 6 April 2023.[23] The slide clearly states that Mr Allen had been promoted to the position of Analytics Engineer. The evidence also indicates that Mr Wai congratulated Mr Allen on his promotion.[24] This being so, I do not find that Open Universities withheld from Mr Wai relevant information about the promotion of Mr Allen. That Mr Wai subsequently formed a different view as to whether he could also perform such a role or should have been redeployed to a related role advertised by Open Universities goes to merit as to whether he was genuinely made redundant, but does not reasonably explain the delay.
In essence, what occurred in this matter is that the materials filed by Open Universities on 4 October 2023, particularising as they did to a greater degree the employer’s reasoning and its decision making timeline, raised more questions in the mind of an already sceptical Mr Wai. Those questions caused Mr Wai to more firmly believe that he had not been genuinely made redundant. Mr Wai then deduced that if the employer’s timeline and rationale made no sense (at least to hm) then he must have been dismissed for a different reason, with redundancy a subterfuge. That different reason, Mr Wai deduced, must have been because he complained about a manager nine months earlier, and because he and the other employees made redundant in July 2023 were of Asian ethnicity.
It was on this basis then that Mr Wai decided to discontinue his unfair dismissal application and file a general protections claim.
In deciding the extension of time matter, I am not called on to decide the true reason for dismissal, or whether Mr Wai was genuinely made redundant within the meaning of the FW Act or whether other undisclosed reasons were at play. I am simply called upon to consider whether Mr Wai’s assertion that the materials filed on 4 October 2023 reasonably explain his change of litigation strategy. I do not so find. I do not find a reasonable basis on the evidence before me to objectively conclude that the materials filed by Open Universities on 4 October 2023 necessarily or reasonably led to the deductions and speculation made by Mr Wai or that such deductions or speculation could not have been made when Mr Wai first took legal advice on his dismissal. For example, Mr Wai acknowledged in this proceeding that, at the time of dismissal, he knew that he and the others to be made redundant were of Asian origin.[25]
Notwithstanding the genuineness of Mr Wai’s disposition, his narrative (that the employer’s materials provided reasonable grounds for then believing, but not prior, that he had been dismissed for exercising workplace rights) proceeds less as a function of legitimate inference than of speculation and conjecture.
Also relevant to the explanation for the second period of delay is that Mr Wai took advice from two professional sources in the fortnight after 4 October 2023, before discontinuing his unfair dismissal claim.
I do not consider a period two weeks to take advice on an important issue of litigation strategy to have been, of itself unreasonable. I reject the employer’s submission to that effect. Clearly it was an important decision for Mr Wai impacting his rights and interests. Mr Wai sought advice from two sources and reasonably wanted not just industrial advice (from Job Watch) but legal advice (from a solicitor).
However, whilst the time taken to secure and consider this advice was not unreasonable the nature of the advice given underscores the fact that Mr Wai made a further forensic decision, being a decision to discontinue an active unfair dismissal claim (that had been set down for hearing) and file an out of time general protections application.
Further, the evidence establishes that Mr Wai exercised independent personal judgment in making this decision. The professional advice he received from both sources identified such a strategy as risky given the out of time issue or potential problems with multiple applications. The advice from Job Watch specifically suggested an alternative – pursue the unfair dismissal claim and make a later Human Rights Commission claim on the unlawful dismissal aspects. Mr Wai’s 8 October 2023 email to Commissioner Cirkovic reveals that even before taking professional advice his own research had suggested that the overall success of securing an extension of time was low.
In the final analysis, Mr Wai decided to take the calculated risk of filing a late general protections application. He did so because of his conviction that the employer had, in its 4 October 2023 materials, misled him and caused him to believe that reasons other than redundancy were at play. That belief was conjecture and its reasonableness has not been objectively established.
A reasonable explanation for the second delay period has not been made out.
The two day period 20 to 22 October 2023 that comprises the third delay period when Mr Wai prepared his general protections application was a reasonable period of time to do so, particularly having regard to the level of detail Mr Wai prepared.
I deal with one further submission made by Mr Wai. He submits that time should be extended because he acted within twenty-one days of 4 October 2023. I have found that Mr Wai acted in a reasonably timely manner after 4 October 2023. However, the suggestion that the twenty-one day period required by s 366(1)(a) operates or could somehow be construed to operate from a nominated period other than the date dismissal took effect is misconceived. The FW Act makes no allowance for such a construction.
Considered overall, the explanation for the late filing based on the events associated with the conduct of Mr Wai’s earlier unfair dismissal claim do not, when objectively considered, provide a reasonable or acceptable explanation for the delay.
Action taken to dispute dismissal (s 366(2)(b))
By filing an unfair dismissal application two months earlier Mr Wai clearly took action to dispute his dismissal. In doing so, Mr Wai put the employer on notice that he considered the dismissal wrong and unfair, and that he intended to have the matter independently adjudicated via a legal claim in the Commission.
This weighs in favour of extending time.
Prejudice to the employer (s 366(2)(c))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[26]
If time is extended, the current application would have to be further responded to by the employer, involving time and cost. The matter would, in the first instance, then proceed to conciliation and if not resolved Mr Wai would have the right to press his application in the courts.
The evidence of Ms Saunders is that Open Universities incurred legal costs of $45,000 in defending the discontinued unfair dismissal claim, invested almost one hundred hours of management time in dealing with that claim and had been diligent in preparing and filing detailed materials in response to Commissioner Cirkovic’s directions and in preparing for a hearing.[27]
I generally accept this evidence. It establishes a level of prejudice beyond the norm in that the employer now has to defend a second claim concerning the same dismissal where the first claim had proceeded to a relatively advanced stage in the Commission.
I take this into account but note that whilst both claims concern the same dismissal they are grounded on different propositions (unlawfulness versus unfairness) and that the right to take action against an alleged unlawful dismissal is an important and separate statutory right.
Considered overall, the prejudice to the employer weighs somewhat but only slightly against granting an extension.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[28]
Merits of the application (s 366(2)(d))
Merit proceedings would concern whether the employer dismissed Mr Wai for an unlawful reason.
Further evidence on these matters would be required to make relevant findings. Noting the reverse onus of proof in the FW Act concerning general protections applications, it is premature to express a view on that question other than to note my observation that, on the evidence before me to date, Mr Wai’s concerns appear to have been borne more of speculation than reasonable inference.
This is, at best, a neutral consideration.
Fairness between persons in similar position (s 366(2)(e))
The employer submits that past decisions of the Commission have refused to grant extensions of time when employees change their mind about litigation strategy. It submits that it would be unfair to those employees whose cases were not permitted to proceed for Mr Wai’s case to proceed. It refers, by way of example, to the decision of Deputy President Cross in Soubra v Adapt-A-Lift Group Pty Ltd[29] where it was said:
“[19] I do not accept that a purely preferential decision to pursue an alternative cause of action because it would have more merit and prospects of success if it were a general protections claim constitutes an acceptable reason for delay.”
Whilst the aforementioned general proposition by the Deputy President is well reasoned, each case turns on its own facts. It would be wrong to suggest that, as a general rule, an extension of time is not available to one employee who files a late general protections application after an earlier unfair dismissal claim simply because another employee was not successful. In all cases the relevant issue is whether, on the facts of each case, exceptional circumstances exist.
I decide this matter by reference to the facts and evidence pertaining to Mr Wai and Open Universities, not more broadly.
This is a neutral consideration.
Conclusion
The period of delay is significant.
The explanation for delay primarily concerns the rationale for the forensic decision about litigation strategy made by Mr Wai, after taking professional advice, to discontinue an earlier unfair dismissal claim and file a general protections claim which he knew to be eighty-six days late.
In turn that explanation is to be assessed by reference to the conduct of Mr Wai and the employer during the unfair dismissal litigation (and in particular the content of the materials filed by the employer on 4 October) which Mr Wai says led him to believe that his interests would be better served by a general protections claim.
I have found the explanation for the delay to be unconvincing when considered objectively despite the sincerity attached to the latent belief Mr Wai formed about the employer dismissing him for ulterior reasons.
Only the fact that the employer was on clear notice of a legal challenge to the dismissal via the earlier unfair dismissal proceedings weighs in favour.
I do not consider that exceptional circumstances exist. It is not unusual or uncommon that an employee is informed in greater particularity during unfair dismissal litigation of the rationale applied by their former employer in deciding to dismiss or of timelines or documents on which they relied in making that decision. The evidence does not materially point to more than that. The additional information made known to Mr Wai does not reasonably explain the delay.
There being no exceptional circumstances, the time for lodgement cannot be extended.
Disposition
As time for late lodgement has not been extended, application C2023/6525 is out of time and cannot proceed further. It must be dismissed.
An order giving effect to this decision will be issued in conjunction with its publication.[30]
DEPUTY PRESIDENT
Appearances:
Mr H Wai, on his own behalf.
Ms F Leoncio, of Counsel, with permission, with Ms F Torcasio, on behalf of Open Universities Australia Proprietary Limited.
Hearing details:
2023.
Adelaide (by video).
6 December.
[1] [2020] FCAFC 152
[2] Directions 15 November 2023, [6]
[3] R3 paragraph 15
[4] Ibid
[5] A1 1.2 TK4, TK5 and TK7
[6] A1 1.2 LJ12
[7] Ibid at page 13
[8] A1 1.2 LJ13
[9] A1 1.2 LJ15
[10] A1 1.16
[11] Hearing, 6 December 2023, 2:25:22 -2:25:33
[12] Smith v Canning Division of General Practice[2009] AIRC 959
[13] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[14] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[15] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[16] John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7] and [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[17] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[18] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[19] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[20] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
[21] A2 1.3 attachment TK3
[22] A1 1.1 LJ6
[23] R3 TK3
[24] R3 TK6
[25] F8 Application Item 1.2 paragraph 16
[26] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[27] R2
[28] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[29] [2020] FWC5366
[30] PR769583
Printed by authority of the Commonwealth Government Printer
<PR769582>
3
13
0