Mr Archie Nieto v RB (operating as Mead Johnson Nutrition Australia Pty Ltd)

[2020] FWC 2355

[2020] FWC 2355

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Archie Nieto
v
RB (operating as Mead Johnson Nutrition Australia Pty Ltd)
(C2020/547)

DEPUTY PRESIDENT CROSS SYDNEY, 5 MAY 2020

Application to deal with contraventions involving dismissal.

[1] On 31 January 2020, Mr Archie Nieto (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed, by RB (operating as Mead Johnson Nutrition Australia Pty Ltd) (“the Respondent”). The Applicant commenced his employment with the Respondent on 28 June 2019. His dismissal took effect on 9 January 2020, and he was notified of his dismissal on that date.

[2] General protections applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 30 January 2020. The application was therefore lodged outside of the time prescribed and was lodged one day after the last day on which such an application could have been made

[3] On 17 February 2020, a Directions Hearing was conducted to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge his application (“the Application”) would be determined (“the Directions”). The Directions were issued that provided for a timetable for the filing of Outlines of Submissions from both parties addressing the out of time issue, together with any witness statements and other documentary material upon which each party intended to rely. In the Directions Hearing the parties were specifically directed to the provisions of s.366(2) of the Act, and they were advised to address the considerations outlined therein where appropriate.

[4] The Directions also provided that the Application would thereafter be determined on the materials filed by the parties, unless an Application was made and granted for the hearing of evidence. After reviewing the materials filed, I determined that a hearing should occur due to failures by each party in addressing the various considerations outlined in s.366(2) of the Act. That hearing occurred on 5 May 2020.

[5] In accordance with the Directions:

(a) On 27 February 2020, the Respondent filed a Form F8A response with annexures; and

(b) On 12 March 2020, the Applicant filed an Outline of Submissions with annexures.

[6] Each party relied primarily on an email with a letter attachment sent by the Applicant to the Respondent on 24 January 2020, six days prior to the expiry of the limitation period. The covering email was in the following terms (with certain email addresses redacted for privacy) (the “Adverse Action Email”):

From: Archie Nieto

Sent: Friday, 24 January 2020 1:46 PM

To: Felipe Alberto Martinez Enriquez; Newth, Cat

Subject: [EXTERNAL] Adverse Action Claim Letter - Termination of employment under probation (A.Nieto)

Dear Felipe,

This is to notify you that I am exercising my rights under Section 340 of the Fair Work Act 2009 which prescribes adverse action as a results of termination of employment under probation.

Please find attached adverse action claim letter for full details.

regards,

Archie Nieto

[7] The full contents of the attached letter (the “Adverse Action Letter”) were as follows:

24 January 2020

To: Felipe Alberto Martinez Enriquez

Director of Mead Johnson Australia

Subject: A. Nieto Termination of employment under probation - Adverse Action Claim under Section 340 Fairwork Act 2009

Dear Felipe,

This is to notify you that I am exercising my rights under Section 340 of the Fair Work Act 2009 which prescribes what constitutes unlawful adverse action (A reverse onus of proof applies in proceedings brought under this section. Reference case: Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734 (17 December 2018).

FAIR WORK ACT 2009 - SECT 340

Protection

A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b) to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

I will allege that adverse action was taken and prohibited (thus unlawful) as the motivation behind the termination of employment under probation is prohibited which is to punish someone for exercising a workplace right which is identified as follows:

•  Raised a whistles blower complaint thru RB Whistles Blower website against the Senior QA Manager for an act of sexual harassment against a female office staff. Complaint reference no. 317184914902.

•  Investigation of Vitamin C which resulted into negative outcome against Senior QA Manager, Senior Technical Manager, Bega QA Specialist and Regional QA Director. My investigation found that they were all accountable for the release of the product even though laboratory test results shows a high reading of Vitamin C and for the approval of production line to proceed without proper cleaning completed.

•  CAPEX Project for Derrimut & Tatura. Additional resources were raised/requested by Engineering Director to the Senior QA Manager for the 2 projects which I supported at that time. This was made a big deal by the Senior QA Manager and my support for the additional resources was taken negatively by the Senior QA Manager.

•  My communication with Engineering Director which is a legitimate business process (Engineering Director managed project and my support role for CAPEX from Food Safety point of view) was made an issue by Senior QA Manager and I was told 3 times that it’s not acceptable. I argued with the Senior QA Manager that this a legitimate process for which he disagreed.

•  Email communication with Regional QA Director about high Vitamin C issue. This was raised by Senior QA Manager and I argued that it’s not me who sent the email to RQAD but it’s the Senior Technical Manager. This was taken negatively by SQAM.

•  Email communication with the Director for RB Australia was raised as an issue by Senior QA Manager. I argued that this is a normal business process for which he disagreed. The Senior QA Manager instructed me that all communications must only pass through to him. I argued with the Senior QA Manager that in a lot or organisation this practice is not sustainable. This situation was taken negative against me.

•  Last minute Urgent Request for information (after working hours) about list of equipment from Tatura site. I raised this point to the Senior QA Manager but was taken negatively against me. As a background, this task was assigned to him and since he was unable to deliver and was raised during the call, he immediately sent an email during the conference call asking to provide the information.

•  Bega QA Specialist raised negative comment about myself which was mentioned by Senior QA Manager during the probation review. This was made by Bega QA Specialist as a retaliation against me for the investigation I made with the high Vitamin C issue which I found him to be one of the accountable person for the factory not cleaned at all before starting commercial production.

•  Travel time between the 2 sites (Derrimut & Tatura). The Senior QA Manager raised an issue about me leaving early (earlier than 5 PM) & travel back to Melbourne from Tatura. He instructed me to stay and not leave Tatura sites before 5 PM, and I argued with him that it’s not safe to travel late coming from Tatura due to kangaroos roamed around during this time of the day and lots of cases of road accident related to this.

•  The probation review is not fair and there is no genuine offer of training nor improvement performance agreement. The company contravened “good faith” discussion and deceptive practices during the review process. As a matter of fact a decision was already made in December to terminate my probation, Termination Letter dated 17th December 2019 (which was only handed over to me on the 9th January 2020 close to end of business, 4 PM). When I inquired to HR & Senior QA Manager after the probation review in December 2019, the reply from HR was that there was a “concern” about various aspect of my performance but in fact a decision was already made as evidence of Termination Letter dated 17th December 2019.

Conclusion and Disposition

The probation review was an act as retaliation against me by Senior QA Manager, Regional QA Director. I challenged comments from the review with factual results with the acceptable EMP results for the 2 projects and the positive comments from Belinda of the over-all performance of the sites which I managed from Food Safety perspective.

As stated above the company acted not in good faith and there was a pattern of deception throughout the process.

Proposed remedy in the form of monetary payment equivalent to 26 weeks equivalent salary (INDUSTRIAL RELATIONS ACT 1988 No. 86 of 1988 - SECT 179 Recovery of wages etc.)

In addition to economic loss, a compensation may be made under s.545(2)(b) of the FW Act where a person has suffered distress, hurt and humiliation as a result of the contravention of a civil remedy provision. Under this provision I will ask for a remedy in the amount equivalent to 3 months salary.

I am looking forward for your reply and propose remedial action before the 28th of January 2020.

I am also advising you of my next course of action which is to file the adverse action claim with Fairwork Commission within & before 21 days requirement without an acceptable remedial action from your part.

Respectfully yours,

Archie Nieto

Consideration

[8] Section 366 of the Act determines the permissible time limit for a general protections application. Section 366(1) of the Act provides:

“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).”

[9] As the Application was lodged outside of the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a ‘further period’ should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(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.”

[10] It is clear from the structure of s.366(2) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[11] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act, there are exceptional circumstances.

(a) Reason for the delay

[12] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this, Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[13] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 noted at [39]:

“The absence of any 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 the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[14] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[15] In his written submission the Applicant did not specifically advance a reason why his application was delayed, albeit by only one day. In the hearing of the matter, Mr Nieto directed my attention to the following passage as constituting his reasons for delay:

“As a result of termination of employment the Applicant had lost his main income to support his family and add up to family’s difficult situation (Applicant’s wife was diagnosed with breast cancer last year 2019 and is undergone chemo therapy & radio therapy and an on-going long term treatment. At the time of termination of employment the Applicant’s wife is also under-going counselling from anxiety & recovering from chemo & radio therapy). In Gayachandra Kuruppuarachchige v Curry leaf Sri Lanken Restaurant Pty Ltd (C2012/4925) [13], Commissioner Deegan stated, “I am prepared to accept that the applicant’s position following the termination of his employment was difficult. No doubt he suffered financially. I am prepared to accept that the termination had an effect on his mental state. I am not prepared to accept, however, that this condition existed for almost two years following the termination. The applicant gained new employment in mid-2011. In the absence of any compelling medical evidence I do not accept that his mental condition affected his ability to take the necessary action to lodge the application from that time”. I would like to emphasize that this case before the Commission is only 1 day delay and not 2 years, but the Commissioner was prepared to accept the reasoning.”

[16] I do not, however, consider that the medical condition of the Applicant’s wife, and the associated difficulties arising from the loss of his family’s main source of income, can explain the delay. Indeed it is clear from the Adverse Action letter that the Applicant was aware of the 21 day limitation period, was imposing upon the Respondent timeframes for response well within that 21 day period, and was capable of advancing his claims.

[17] I find there is no acceptable explanation for the delay in application. Accordingly, this factor weighs in the Respondent’s favour.

(b) Action taken by the person to dispute the dismissal

[18] The Applicant submitted, relying upon Brodie-Hanns v MTV Publishing Ltd  1, as follows:

“Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.”

[19] The Respondent conceded that the Applicant did take action to dispute his dismissal. Accordingly, this factor weighs in the Applicant’s favour, however the Applicant’s failure to comply with his own outlined timetable for acting on his claim weakens the weight I accord to this factor. While the Respondent was on notice of the proposed claim, from the time of the expiry of the 21 day period which the Applicant had himself identified, the Respondent was entitled to treat the matter as not being pursued.

(c) Prejudice to the employer

[20] Neither party made any material submission in relation to this consideration, and in the hearing the Respondent claimed no prejudice. This factor accordingly a neutral consideration.

(d) Merits of application

[21] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and that this action took place because of a prohibited reason.

[22] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd 2stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[23] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness between the person and other persons in a similar position

[24] No party made any material submission regarding this consideration, and I do not consider there other Applicants with comparable positions to be considered. This consideration is neutral.

Conclusion

[25] As is evident from the analysis above, the matter that was the subject of apportionment of any significant weight for the Respondent was the absence of any acceptable reason for delay. The only factor weighing in the Applicant’s favour was action taken to dispute the dismissal, though its weight was weakened.

[26] I am persuaded therefore that, in the overall balance, there are not exceptional circumstances. The Application for extension of time is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR719133>

 1 (1995) 67 IR 298, at pp. 299-300.

 2   Unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000, Print T2421.