Martin Parnell v NBN Co Limited
[2023] FWC 2722
•18 OCTOBER 2023
| [2023] FWC 2722 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Martin Parnell
v
NBN Co Limited
(C2023/5151)
| COMMISSIONER CRAWFORD | SYDNEY, 18 OCTOBER 2023 |
General protections dismissal dispute - application filed out of time – application dismissed
BACKGROUND
Martin Parnell (Mr Parnell) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mr Parnell’s allegations that he has been dismissed from his employment with NBN Co Limited (NBN Co) in contravention of Part 3-1 of the FW Act.
Mr Parnell commenced employment with NBN Co on 26 October 2015 and was employed in the role of Executive Manager – Network Operational Transformation prior to being dismissed on the ground of redundancy on 30 June 2023.
NBN Co has objected to the application on the ground that the application is out of time.
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
I issued directions for the filing of material in relation to whether I should grant an extension of time on 21 September 2023 and listed the matter for hearing on 13 October 2023. The parties complied with the directions.
PERMISSION FOR REPRESENTATION
The directions I issued on 21 September 2023 included provision for the parties to file a brief submission in support of being granted permission for legal representation and for the other party to file a brief submission in opposition to permission being granted to the other party. The directions also indicated I would determine the issue of permission on the filed material and inform the parties prior to the hearing. NBN Co filed a submission in support of being granted permission to be represented on 27 September 2023. Mr Parnell did not file a submission opposing permission being granted to NBN Co. On 9 October 2023, the parties were informed I had granted permission to NBN Co to be legally represented pursuant to s.596 of the FW Act on the basis I was satisfied it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.
Mr Parnell represented himself at the hearing on 13 October 2023. NBN Co was represented by Mr White and Ms Good from Minter Ellison.
MATERIAL FILED
Mr Parnell
Mr Parnell relied on the following material, in addition to his Form F8 application, in support of the granting of an extension of time for the filing of his application:
· Outline of submissions dated 29 September 2023.
· Statement by Mr Parnell dated 29 September 2023. I marked the statement Exhibit A1.
· Mr Parnell’s notes from a conversation with Gaurav Desai (General Manager, Technology Solutions Integration) dated 27 February 2023. I marked the notes Exhibit A2.
· Mr Parnell’s notes from a conversion with Michael Richardson (Executive General Manager) dated 27 February 2023. I marked the notes Exhibit A3.
· An Outcome of Grievance letter to Mr Parnell from Greg Spain (Employee Relations Specialist) dated 2 June 2023. I marked this letter Exhibit A4.
Mr Parnell was not cross-examined on this evidence.
Mr Parnell also provided oral closing submissions at the end of the hearing.
NBN Co
In addition to its Form F8A response, NBN Co relied on the following material in opposing the granting of an extension to Mr Parnell:
· Outline of submissions dated 6 October 2023.
· Statement by Andrew Leong (Executive General Manager, Technology and Solutions) dated 5 October 2023. I marked this statement Exhibit R1. Mr Leong was not cross-examined by Mr Parnell.
· Statement by Mr Desai dated 4 October 2023. The statement contained the following annexures:
·Records of Mr Parnell's sick leave in 2023
·Email dated 16 May 2023 from Gaurav Desai to Martin Parnell
·Email dated 17 May 2023 from Gaurav Desai to Martin Parnell
·Network, Engineering & Security Confirmed Team Changes – 5 April 2023
·Network, Engineering & Security Team Changes: Consultation 28 – 31 March
·Network Engineering Confirmed Team Changes – 24 May 2023
·Network Engineering Team Changes: Consultation 16 May – 21 May 2023
·Technology & Solutions Confirmed Team Changes – 24 May 2023
·Technology & Solutions Team Changes: Consultation May 2023
·Networks Engineering Team Changes: Consultation 28 – 31 March
·Technology & Architecture Team Changes: Consultation 28 – 31 March
·Email dated 23 May 2023 from Gaurav Desai to Martin Parnell
·Email dated 24 May 2023 from Gaurav Desai to Martin Parnell
·Attachment to email dated 24 May 2023 from Gaurav Desai to Martin Parnell
·Final payslip of Martin Parnell
·Record of the allocation of the Grievance to Mr Spain
I marked the statement Exhibit R2. Mr Desai was not cross-examined by Mr Parnell.
Mr White also provided oral closing submissions at the end of the hearing.
CONSIDERATION
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 24 August 2023.
When did the dismissal take effect?
It is not in dispute, and I find, that the dismissal took effect on 30 June 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 30 June 2023. The final day of the 21-day period was therefore 21 July 2023 and ended at midnight on that day. The application was made on 24 August 2023. The application was made 34 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute 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) any action taken by Mr Parnell 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 Mr Parnell and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]
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 21 July 2023. The delay is the period commencing immediately after that time until 24 August 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
Mr Parnell 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 Mr Parnell has not provided any reason for any part of the delay.[5]
Mr Parnell provided the following two explanations for the delay:
(i) Medical issues
Mr Parnell suffered an injury to his right distal bicep tendon on 23 February 2023. He underwent surgery in March 2023. This injury reduced Mr Parnell’s ability to exercise, which he relies upon to manage his risk of heart problems. Mr Parnell also indicated he was concerned that filing an application would generate stress which could put him at risk of a heart attack. Mr Parnell referred to suffering heart palpations. Mr Parnell ultimately attended his doctor on 8 August 2023 and was advised by the doctor that it was unlikely pursuing an application would put him at risk of a heart attack.
(ii) Misapprehension of his economic loss
Mr Parnell indicated he did not initially anticipate encountering such difficulties finding alternative employment. Mr Parnell stated he initially thought his redundancy payments would cover his loss of income until he found another job. Mr Parnell has been unsuccessful with many applications since being dismissed, despite utilising career transition services, and he is concerned he may not find another job for up to 12 months.
I accept NBN Co’s submission that Mr Parnell has not provided sufficient evidence to establish that medical issues prevented him from filing an application within the 21-day period.
The evidence demonstrates Mr Parnell was able to perform work after his surgery in March 2023 after a period of absence of around two-and-a-half weeks. I do not consider this injury provides a reason for Mr Parnell not being able to file an application within 21 days of 30 June 2023, given Mr Parnell was seemingly fit to work from when he returned to work after the surgery on around 7 April 2023 until his dismissal on 30 June 2023.
While I sympathise with Mr Parnell regarding the history of heart issues within his family, and accept he was genuinely concerned about having a heart attack if he became too stressed after being dismissed on 30 June 2023, I cannot accept this explains the delay given the lack of medical evidence. Mr Parnell did not seek medical assistance until 8 August 2023, which is well after the 21-day period had expired, and was told by his doctor that it should be safe for him to pursue an application. The application was then not filed until 24 August 2023. Mr Parnell is clearly an intelligent and articulate person, and he did not explain why it took him until 24 August 2023 to file an application after seeing his doctor on 8 August 2023.
I do not accept Mr Parnell’s other argument, which is that he did not realise how much difficulty he would have with finding alternative employment until the 21-day period had lapsed, provides a sufficient explanation for the delay. As I raised with Mr Parnell during the hearing, I consider it would be common for a dismissed employee to underestimate how long it may take to find another job. The appropriate course of action is to file an application within the 21-day period to protect their position. I do not consider this explanation to be a persuasive reason to find there are exceptional circumstances.
I find that Mr Parnell does not have an adequate reason for the delay and this weighs against extending the time period for the filing of his application.
What action was taken by Mr Parnell to dispute the dismissal?
Mr Parnell accepted he did not take any steps to dispute his dismissal from 30 June 2023 until he filed his application on 24 August 2023. This weighs against extending the time period for the filing of his application.
What is the prejudice to the employer (including prejudice caused by the delay)?
NBN Co submitted it suffered a minor degree of prejudice. Mr White referred to the delay meaning NBN Co could not search for any evidence regarding the meeting notes relied on by Mr Parnell until months after the meetings occurred. I do not accept the delay has prevented NBN Co from being able to respond to the application. I find this to be a neutral factor.
What are the merits of the application?
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]
As I raised with Mr Parnell during the hearing on 13 October 2023, the evidence suggests to me his primary grievance is that he was overlooked for the position of General Manager NSME in February 2023. It appears Mr Richardson picked an external applicant for this position, even though Mr Parnell had been successfully performing the role for the previous 12 months. I can completely understand Mr Parnell being upset about this decision. Mr Parnell lodged a formal grievance about the decision-making process on 3 March 2023. It is unclear why NBN Co did not determine the outcome of Mr Parnell’s grievance until 2 June 2023. That is after it had notified him on 24 May 2023 that he would be made redundant on 30 June 2023. It is not helpful that NBN Co did not finalise its investigation into Mr Parnell’s grievance prior to determining it would make him redundant. I consider this delay has contributed to Mr Parnell’s agitation about his treatment.
However, Mr Parnell accepts there was genuine and widespread restructuring occurring within NBN Co when the decision was made to make his position redundant. Mr Parnell accepted during the hearing that his redundancy was genuine.
Mr Parnell suggested that his redeployment opportunities may have been reduced because he lodged a formal grievance on 3 March 2023. However, there is uncontested evidence from Mr Desai that Mr Parnell indicated he was not interested in redeployment and was “more interested in finding opportunities outside of nbn.”[7] Mr Parnell explained this evidence by stating that he was not interested in stepping down into a lower role.
While the evidence was not tested in cross-examination, the statements from Mr Leong and Mr Desai suggest it is likely NBN Co will be able to establish that its decision-makers were not aware that Mr Parnell had filed a formal grievance when they decided to make his position redundant.
Taking account of all the circumstances, I consider the merits of the application weigh against the granting of an extension of time.
Fairness as between Mr Parnell and other persons in a similar position
Mr Parnell suggested the predicament he faced was unique and would not have been encountered by other employees. NBN Co submitted it would be unfair to other persons that have been denied extensions by the Commission because they did not file sufficient medical evidence, if an extension is granted to Mr Parnell. I consider this to be a neutral factor.
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 regarding each of the matters referred to 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.[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]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
The main reasons for arriving at this decision are that I do not consider Mr Parnell has provided a sufficient explanation for the delay in the filing of his application, and I consider the merits of his application weigh against the granting of an extension.
Conclusion
I am not satisfied there are exceptional circumstances.
Mr Parnell’s application is dismissed.
COMMISSIONER
Appearances:
Mr Parnell representing himself.
Mr White and Ms Good from Minter Ellison for NBN Co.
Hearing details:
2023.
Sydney.
13 October.
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Exhibit R2 at [31].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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