Michael Ngo v National Australia Bank Limited

[2022] FWC 287

[2022] FWC 287

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Ngo
v

National Australia Bank Limited

(U2022/361)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 FEBRUARY 2022

Application for an unfair dismissal remedy – application made outside of the time prescribed – whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time refused – application dismissed.

1. This is an edited version of my decision delivered ex tempore and recorded in transcript on 4 February 2022. Mr Michael Ngo lodged an unfair dismissal remedy application under s 394 of the Fair Work Act 2009 (Act) on 5 January 2022.

1. Mr Ngo commenced employment with National Australia Bank Limited, the respondent, on 16 September 2019. On 28 October 2021 Mr Ngo was advised by the respondent that his position, as an engineering manager, was no longer required and is redundant. He was also advised that he would commence a period of redeployment and if efforts at redeployment were unsuccessful his employment would come to an end on 8 December 2021, by reason of redundancy. As events transpired, redeployment was not achieved and Mr Ngo’s employment was terminated on redundancy grounds, with effect on 8 December 2021. The respondent says that the dismissal was a case of genuine redundancy, within the meaning of s 389 of the Act.

1. The time within which an application for an unfair dismissal remedy could be made, in Mr Ngo’s case, elapsed at the end of 29 December 2021. Mr Ngo’s application was therefore lodged seven days beyond the time prescribed.

1. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days after the date on which the dismissal took effect, or within such further period as the Commission may allow. Since the application was lodged outside of the time prescribed, it is necessary for me to consider whether Mr Ngo should be granted a further period within which to lodge his application.

1. The Act confers on the Commission a discretionary power to extend the time within which an unfair dismissal remedy application may be lodged but the power is only exercisable if the Commission is first satisfied that there are exceptional circumstances, taking into account the various matters that are set out in s 394(3).

1. As to exceptional circumstances, briefly, these are circumstances that are out of the ordinary or unusual or special or uncommon. But the circumstances need not be unique, or unprecedented, or even very rare. Exceptional circumstances might amount to a single event which is exceptional, or a combination of factors which, individually, are unexceptional but which, when combined or viewed together, persuade the Commission that the circumstances are exceptional circumstances.

1. As I indicated, the matters which the Commission must take into account in assessing whether there are exceptional circumstances are set out in s 394(3) and they are as follows:

“(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. Each of these matters need to be taken into account, they need to be assessed and appropriate weight must be assigned to each, taking into account the evidence about each matter.

1. I will deal with each of the considerations, beginning with the reason for the delay. As I earlier explained in this proceeding, the reason for the delay is concerned with the period beyond the 21 days, that is the period beyond, in this case, 29 December 2021. This should be evident because an application lodged within 21 days is not delayed at all. We are here concerned with the explanation or reason which might satisfactorily explain the whole of the period of the delay, in this case the period of seven days.

1. As to the reason for the delay, Mr Ngo’s evidence was that from about 7 December 2021, if not earlier, he was suffering from a medical condition which caused sleeplessness and breathing difficulties and affected his capacity to focus and communicate. He consulted a medical practitioner on 7 December 2021. He was advised, amongst other things, to take a break away from sitting at a computer and was told, in effect, that various matters, including the stress associated with the redundancy circumstances that he was facing, may well be contributing to his condition. He had a follow up consultation on 10 December 2021 and his evidence was that the symptoms of sleeplessness and breathing difficulties continued thereafter and, indeed, continued beyond the time that he lodged his application.

1. There is no medical evidence which supports the evidence that Mr Ngo has given, and while I accept that he had the medical conditions or symptoms, as he described, I have some difficulty in accepting that those were so significant as to satisfactorily explain the delay, absent any medical evidence to effect. It is uncontroversial that Ms Devitt, his partner, assisted Mr Ngo in preparing the application and there is no probative evidence as to why that assistance could not be rendered earlier in time, particularly given that, on Mr Ngo’s evidence, he and Ms Devitt discussed the unfairness of his dismissal and the possibility of challenging the dismissal sometime in early December 2021.

1. Moreover, given that his medical condition continued beyond the date on which he lodged his application and, on Mr Ngo’s evidence, continued whilst he was required to comply with my directions issued on 10 January 2022, the fact that he was able to prepare or give instructions to prepare the submissions and the statements that he has filed and that he was able to comply with timeframes within which I required materials to be filed, pursuant to directions, tells against a conclusion that his medical condition was a contributor, or a significant contributor, to the delay.

1. In those circumstances, I am not persuaded that the applicant has provided an acceptable, credible, or satisfactory explanation for the whole of the period of the delay. The fact that there is not such an explanation for the whole of the period of the delay weighs against a conclusion that there are exceptional circumstances.

1. Turning next to whether Mr Ngo became aware of his dismissal after it took effect, it is uncontroversial that Mr Ngo was first notified of the possibility of his dismissal on 25 October 2021 and was subsequently advised, by correspondence, on 10 November 2021, that his position will become redundant, or became redundant, on 10 November 2021 and that in the event that redeployment does not succeed in continuing his employment, the anticipated retrenchment or termination of employment date was 8 December 2021.

1. Mr Ngo’s evidence was that he was well aware, at least by the date on which the dismissal took effect, that his dismissal was effective from 8 December 2021. The consequence of this is that he had the benefit of the full 21-day period within which to lodge the application. It is not as though he discovered that his employment had ended after it took effect. The fact that he had the full period available to him to lodge his application is a factor that also weighs against a conclusion that there are exceptional circumstances.

1. As to any steps that Mr Ngo took to dispute his dismissal, Mr Ngo set out, in his evidence, a number of steps that he took, after being notified of his position becoming redundant but before his dismissal took effect. He said that on 4 November 2021 he lodged a grievance with the respondent’s human resources department, setting out his arguments for being appointed to a position in the restructure and questioning the genuineness and processes relating to the redundancy. He said that he also had a meeting with the respondent’s HR department, and disputed the redundancy, and that he continued, between 19 November 2021 and 1 December 2021, to exchange emails with the respondent about his redundancy. I accept that all of these are steps taken to dispute his prospective dismissal.

1. It is also the case that Mr Ngo did not take any steps, beyond lodging the application, on 5 January 2022, to dispute his dismissal after it took effect. That was his evidence. If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put on notice the employer that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time. However, in this case, there is no dispute raised after the dismissal took effect. Nevertheless, given Mr Ngo’s protestations before the dismissal took effect, the respondent was, in my view, on notice that Mr Ngo did dispute his dismissal. In those circumstances, even though no step was taken after the dismissal took effect, I consider that this consideration weighs neutrally because of the earlier steps taken.

1. As to prejudice, the employer does not assert that it will suffer any prejudice generally, or as a consequence of an extension of time. This is quite proper. The delay period was relatively short, and it would be surprising if an organisation as large as the respondent would suffer any prejudice because of a short delay. The absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion. The applicant contended that there was some positive benefit to the respondent because of the lateness of the application, in that it could respond to the application after it came out of the period of shutdown. That submission, respectfully, misunderstands the notion of prejudice for the purposes of the considerations that I am required to take into account. Ultimately, though there is no prejudice suffered by the respondent, I consider that this matter weighs neutrally. But if it were to weigh in Mr Ngo’s favour at all, it would do so slightly, taking into account the fact that the application should have come as no surprise to the respondent.

1. Turning to the merits of the application, the applicant’s principal position is that his dismissal, on redundancy grounds, was not genuine, that his position was not redundant. He also maintains that it was not only possible but reasonably practicable for him to have been redeployed into another position. It is not the function of the Commission, in interlocutory proceedings such as an application for an extension of time, to determine, fully, the merits of the case. I note that the respondent maintains a jurisdictional objection, that the dismissal of the applicant was a case of genuine redundancy. The purpose of the consideration here is to make a general assessment, and it is done in the context of, largely, uncontested, untested allegations that are made and it is not possible to make any final and substantive determinations.

1. That said, I consider the applicant’s case as one that is not without merit. There are some difficulties that the respondent would face if it pressed its jurisdictional objection, not least of which is the question of whether redeployment was reasonable in the circumstances. Therefore, the fact that Mr Ngo’s application has some merit is a matter that weighs in his favour.

1. The final matter concerns fairness as between Mr Ngo and persons in a similar position. The circumstances in which this consideration might arise include, for example, where there have been matters before the Commission decided on a similar factual basis, or where there are other employees of the employer who face similar circumstances. In essence, this is a consideration or a comparison between the applicant, Mr Ngo, and one or more other persons who have been dismissed. Neither party directed my attention to any matter that is relevant for the purposes of assessing and weighing this matter, and the applicant’s submissions as to fairness, set out in his written material, did not really grapple with the issue under consideration. In any event I am not aware of any employee in a similar position to that of Mr Ngo, nor am I aware of any decision of the Commission which might be relevant in assessing this matter. It is appropriate, in those circumstances to simply weigh this matter neutrally.

1. Though Mr Ngo’s application is not without merit, the absence of a satisfactory explanation for the delay weighs heavily against a conclusion there are exceptional circumstances. Other matters that I have discussed above also weigh against such a conclusion or are neutral. Though the merits consideration weighs in Mr Ngo’s favour it is not so weighty as to tip the balance the other way. In the instant case, there is no single exceptional matter nor any combination of unexceptional or ordinary matters which, when taken together, would lead me to conclude that there are exceptional circumstances.

1. For these reasons, I am not persuaded that there are exceptional circumstances. Consequently, the need to consider whether to exercise my discretion does not arise. In those circumstances it is appropriate that the application for an extension of time be refused, and the application lodged by Mr Ngo, on 5 January 2022, outside of the time prescribed by s 394(2) of the Act, be dismissed.

1. I therefore order as follows: the application to allow a further period within which Mr Ngo might lodge his application for an unfair dismissal remedy is refused and the application lodged by Mr Ngo, on 5 January 2022, outside of the time prescribed in s 394(2) of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms L Devitt on behalf of the applicant
Mr R Ison on behalf of the respondent

Hearing details:

2022
Melbourne (via video)
4 February

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