Harsheen Lamba v National Australia Bank Limited
[2023] FWC 393
•17 FEBRUARY 2023
| [2023] FWC 393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harsheen Lamba
v
National Australia Bank Limited
(U2023/454)
| DEPUTY PRESIDENT BELL | MELBOURNE, 17 FEBRUARY 2023 |
Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed.
On 18 January 2023, Ms Harsheen Lamba (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by National Australia Bank Limited (Respondent) on 22 December 2022.
The Respondent is a major Australian bank. At the time of her dismissal, the Applicant was employed in the position of Associate Financial Crime Monitoring and Investigations.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission it appears that the Applicant made her unfair dismissal application six days outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making of the application.
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a conference or hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the Act).
On 24 January 2023, I issued directions requiring the Applicant to file evidence and submissions. The Respondent was not required to file material but provision was made in the event that it did. The Applicant gave evidence on her own behalf and filed a witness statement and various supporting documents. The Respondent relied on written submissions and its Form ‘Form F3’ response, but did not file any witness statement.
There is no dispute as to when the dismissal took effect. In the Respondent’s ‘Form F3 Employer Response’, the Respondent states the dismissal took effect on 22 December 2022. The Applicant also contends in her Form F2 application, and I accept, that the date of dismissal was 22 December 2022, and she included a letter of dismissal with that date.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 January 2023. The delay is the period commencing immediately after that time until 18 January 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2] In the present case, the delay is approximately six days.
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]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[4]
The Applicant’s Form F2 and witness statement sets out three broad reasons for delay, namely:
· Her shock, distress and break down in mental health following the dismissal;
· A planned trip to India between 25 December 2022 and 6 January 2023; and
· At least as is stated in her Form F2, she was “not aware of the 21 day application time frame”.
The first of the above reasons was the primary reason advanced by the Applicant.
The Applicant’s evidence is that in March 2022, she and her husband had booked flights to Sri Lanka, initially departing on 25 December 2022 and returning on 16 January 2023. In early November 2022, the return date was changed to 6 January 2023. The exact purpose of the trip was not disclosed in her statement but was described as “an obligatory family trip for extenuating circumstances”. There was some brief cross-examination of the Applicant regarding those matters at the determinative conference before me and, while I do not consider it necessary to set them out here, I have had regard to them.
In the section of the Applicant’s witness statement addressing her reasons for delay in filing her application, she states:
“8. During the period of travel (inclusive of the three days prior to pack luggage) between Sunday, 25 December 2022 and Friday, 6 January 2023, I was unable to process the shock, disbelief and stress that my employment of circa six years with the Respondent being terminated, my name being listed on the Australian Banking Association registry and with ASIC as a Fraud Event and that any future career prospects within the banking & finance industry including the Respondent being adversely affected, until our return back to Australia.
9. Following our return to Australia, I was in a state of extreme shock, disbelief and distress as the termination and other consequence outcomes handed to me by the Respondent dawned on me. For an extended time after our return to Australia and till this day, I suffer from many sleepless nights, the range of the aforementioned emotions, sudden break downs and a decline in my mental health as a result of my termination and the other outcomes handed to me by the Respondent. Due to the close departure overseas on Sunday, 25 December 2022, and the requirement to return all equipment via post to the Respondent, I was not able to fully encompass the outcomes delivered to me by the Respondent at 9am on Thursday, 22 December 2022.
10. After understanding the basis of my termination from the Respondent versus the Severity Matrix available to all employees, the communications between myself and my supervisor, Ben Child (hereinafter referred to as Child), and the facts presented by myself to Child and the Respondent, I lodged Form F2 – Unfair dismissal application against the Respondent to the Commission on Wednesday, 18 January 2023.”
I find that the reasons for the delay were due to the Applicant prioritising her family trip to Sri Lanka, as well at taking the time to process the fact of her dismissal given the distress it caused her. It would also appear that the Applicant had not turned her mind to the time frame required to make an unfair dismissal claim. To my mind, these conclusions are tolerably clear from the chronology of events set out in the Applicant’s evidence.
While I accept that the personal circumstances of the Applicant indicated a difficult period following her dismissal and dealing with the shock and consequences to her of that event, I am not satisfied that the evidence of the impact of the dismissal upon her rose to such a level as to adequately explain the delay in commencing an unfair dismissal application. So far as the Applicant relies on the fact of her travel as an extenuating reason, I also do not consider this as an adequate reason for delay, even taken together with the impact that the dismissal had upon her. I also do not consider that ignorance of the statutory time frame is an extenuating reason.
In short compass, I am not satisfied the reasons for the Applicant’s delay in commencing her unfair dismissal claim point to circumstances that would support a finding of exceptional circumstances. Of the factors I must consider in s.394(3), I consider the factor in s.394(3)(a) tends against the application for an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect. Therefore, the Applicant had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[5]
The Applicant’s evidence, which I accept, is that she has not taken any action to dispute her dismissal apart from lodging her unfair dismissal application.
What is the prejudice to the employer (including prejudice caused by the delay)?
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
The Respondent’s Form F3 provides the following explanation concerning the Respondent’s basis for the Applicant’s dismissal, at least so far as the conclusions of an investigation it conducted were concerned:
“a. between 18 May 2022 and 6 November 2022 Ms Lamba had inaccurately altered her start-time in AOM on 94 occasions which included 10 days of having worked overtime.
b. the number of hours claimed as overtime over these 10 occasions was 40 hours, however 13 of those hours were not worked.
c. The estimated cost to NAB in unworked overtime payments is $1,133.56.
d. Ms Lamba initially provided untruthful responses to the investigators, however made full admission to having claimed overtime hours and submitting inaccurate timesheets when confronted with evidence of her conduct.”
The Respondent says that “NAB concluded that Ms Lamba had falsified data for personal gain, engaging in timesheet fraud” and its Form F3 describes subsequent steps to notify the Applicant of those findings.
In her witness statement, the Applicant states:
“18. The Respondent stated in Form F3 – Employer response to unfair dismissal application that I “had manipulated data for personal gain” with intent and were in breach of the Respondent’s policies. The “personal gain” was not of a financial motive nor done with any intent to defraud the Respondent, but was only with the intention to assist my parents in their hospitality business, …. During 2022 my parents were experiencing significant staff shortage issues, as most hospitality business were and are facing. The monies received for the hours not worked remained in my account and I had written to the Respondent on 19 December 2022 via Response to Show Cause GIF0005420 and verbally spoken with Child on 19 December 2022 that I want to return any monies owed to the Respondent (may that be in lump sum or payment arrangement, however the Respondent wished to claw back the monies) as my conduct was not with intent, but rather negligence and that it was not to obtain a financial advantage nor defraud the Respondent. Further, in reference to the consequence outcomes stated within Annexure D attached to this statement, I had verbally communicated with Child on 19 December 2022 that I am willing to accept forfeitures of any bonuses for one to two years, any salary increase (the salary increase of 5% the Respondent provided to its employees on 5 January 2023) and any eligibility for promotion for one to two years if I was able to retain my employment with the Respondent.
19. I do acknowledge that my initial response to the Child on 10 November 2022 and investigators for the Respondent in a recorded interview on 13 December 2022 was untruthful, however this was only because I was ashamed and embarrassed of my conduct as a result of my personal situation to the Respondent. As the Respondent states in Attachment D attached to the Respondent’s Form F3, I did make full admissions to the investigators regarding my personal situation and that I had amended the timesheet without realising the implications of my conduct within the recorded interview on 13 December 2022. Following the conversation with Child on 10 November 2022, I had immediately corrected my actions.”
The Applicant also refers to other information concerning her “extenuating personal situation” that she suggests was not considered, such that the dismissal was disproportionate.
Having regard to the Applicant’s role within NAB and the Applicant’s own descriptions of the transactions and events that led to her dismissal, including being initially untruthful in a recorded interview, those considerations suggest that the Applicant’s substantive unfair dismissal claim will have a number of challenges.
Notwithstanding, it is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e). Perhaps with some generosity to the Applicant, I am prepared to treat this factor neutrally.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, 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.[7] 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.[8] Mere ignorance of the statutory time limit is not an exceptional circumstance.[9]
The stress and shock that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[10]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[11]
Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[12]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[13]
The delay in the present case is six days. In the context of a 21 day period for making an unfair dismissal application, six days is well past the statutory timeframe.
The reasons for delay are in large part due to the time taken for the Applicant to process the shock and distress associated with her dismissal, coupled with difficult travel obligations and some ignorance about the statutory time limit. While the Applicant’s evidence indicates some genuine shock and distress, I am not satisfied that evidence rises to such a level to properly explain such a delay or, indeed, any specific parts of it other than at a general level. I am not satisfied that the reasons for dismissal, on their own or in combination with any other supportive matter establish exceptional circumstances.
As the Applicant had taken no steps to challenge her dismissal beyond the lodgement of her unfair dismissal claim, I do not consider that circumstance assists her application.
I acknowledge that there is no prejudice to the Respondent, a matter which I will treat neutrally. Similarly, the fairness between the Applicant and other persons in a similar position and the merits of the application neither add nor detract from my consideration.
While I acknowledge the genuine challenges that Ms Lamba has faced since her dismissal, when having regard to all of the matters listed at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[14] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
H Lamba on her own behalf
S Aloi from the Respondent
Hearing details:
2023.
Melbourne (by video link via Microsoft Teams):
February 17.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[10] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[11] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[12] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].
[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[14] PR750685
Printed by authority of the Commonwealth Government Printer
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