Mr Avinash Prasanna Venkatesh Vaithiam Sundarlal v National Australia Bank Limited
[2023] FWC 1897
•9 AUGUST 2023
| [2023] FWC 1897 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Avinash Prasanna Venkatesh Vaithiam Sundarlal
v
National Australia Bank Limited
(C2023/3927)
| COMMISSIONER JOHNS | MELBOURNE, 9 AUGUST 2023 |
General protections dismissal dispute – application filed out of time – circumstances not exceptional – application dismissed
Mr Avinash Prasanna Venkatesh Vaithiam Sundarlal (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act). The dispute arises out of the Applicant’s contention that he was dismissed from his employment with National Australia Bank Limited (Respondent) in contravention of Part 3-1 of the FW Act.
The Respondent has objected to the application on the grounds that that the application:
a) is not alleging that the dismissal was in contravention of the general protections in the FW Act;
b) is out of time; and
c) was filed alongside an active unfair dismissal application.
Before dealing with the dispute, the Commission must be satisfied that the application was not made out of time.
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 4 July 2023.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 25 May 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 25 May 2023. The final day of the 21-day period was therefore 15 June 2023 and ended at midnight on that day. The application was made on 4 July 2023. The application was made 19 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 the Applicant 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 Applicant 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.
Facts
The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:
a)On 9 January 2023, the Applicant commenced his employment with the Respondent.[3]
b)On 25 May 2023, at around midday, the Applicant was informed via a call that his employment was being terminated for not meeting the performance expectations of his role within the five (5) month probation period.[4]
Events following dismissal (up to 21-days following dismissal)
c)On 25 May 2023, at 2PM, the Applicant sent an email to various individuals at the Respondent disputing the two reasons proffered for his dismissal.[5]
d)On 25 May 2023, at 3:02PM, the Respondent sent an email to the Applicant noting that its decision is “final” and elaborated on the two reasons which culminated in the unsuccessful probationary period. The Respondent reminded the Applicant of the accessibility of the Employee Assistance Program even three months post-employment and acknowledged that this may be a difficult time for him.[6]
e)On 26 May 2023, at 5:12PM, the Applicant sent an email to the Respondent where he acknowledged that the outcome is “final”, further disputed the reasons given for the dismissal and requested a letter from the Respondent that reflected positively on his termination of employment.[7]
f)On 30 May 2023, at 1:09PM, the Applicant sent an email to the Employee Relations team of the Respondent (ER Team) seeking assistance with his dismissal.[8]
g)On 31 May 2023, at 9:19AM, the Respondent sent an email to the Applicant noting that it will not be issuing a new probation outcome letter as it considers its content accurate and noted further correspondence about its phrasing to be counterproductive. The Applicant was again reminded of the availability of the Employee Assistance Program.[9]
h)On 31 May 2023, at 2:48PM, the Applicant sent an email to the Respondent thanking for its response but noting that his aim is to avoid his name and reputation being tarnished.[10]
Sometime on 31 May 2023, the ER team contacted the Applicant via phone where the Applicant noted that he was on a “road trip” and further disputed the reasons for his dismissal.[11]
j)On 7 June 2023, at 12:47PM, the Applicant sent an email to the ER team in follow up to the phone call on 31 May 2023 and apologised for the delay in providing further information, noting he was “unwell”.[12] In this email, the Applicant provided a summary of his discussions with two of his previous supervisors in the aim of elucidating why he believes the two reasons for dismissal were false. The Applicant again acknowledged that the outcome of his employment is “final”.[13]
k)On 9 June 2023, at 4:21PM, the Respondent’s ER team sent an email to the Applicant noting that his concerns can be raised directly with his supervisor and again reminded the Applicant of the availability of the Employee Assistance Program.[14]
l)On 10 June 2023, at 3:41PM, the Applicant sent an email to the ER team that his supervisor is the person who allegedly engaged in the unfair dismissal and queried what kind of assistance the ER team can provide him especially in relation to unfair dismissals. The Applicant also put the Respondent on notice that he would be raising a case with the Fair Work Ombudsman.[15]
m)On 14 June 2023, at 12:34PM, the ER team responded via email and confirmed that it cannot assist in filing an unfair dismissal claim and instead directed the Applicant to seek advice from the Fair Work Ombudsman, the Finance Sector Union or a legal practitioner.[16]
Events following expiration of 21-day time period
n)On 22 June 2023, at 9:43PM, the Applicant sent an email to the ER team requesting a letter disputing the content of the probation outcome letter, financial compensation and a reference. The Applicant noted in the email that if he does not hear back by 9AM on 24 June 2023, he would be filing an unfair dismissal application. The Applicant also attached a screenshot of his online Fair Work Commission account on the “Apply Online” page.[17]
o)On 23 June 2023, at 4:55PM, the ER team sent an email to the Applicant confirming that no letter will be provided, no compensation will be payable and that it is the Respondent’s policy not to provide employment references. The Respondent again reminded the Applicant of the availability of the Employee Assistance Program and noted that should he wish to file his application, serving it on the ER team will be sufficient.[18]
p)On 27 June 2023, the Applicant’s General Practitioner (GP) provided a letter stating the Applicant attended the clinic with complaints of stress and anxiety, and that “He reported current work situation affected his underlying mental health.”[19] The Applicant also provided a copy of his medication script for anti-depressant tablets.[20]
q)On 29 June 2023, the Applicant lodged an unfair dismissal application (U2023/5808) (UFD Matter).[21] In respect of the UFD Matter the following events occurred.
i.On 1 July 2023, the Applicant was sent a letter by the Commission to his nominated email address noting that it appears he has not met the minimum employment period and that therefore, the Commission may not have the power to deal with his case.[22]
ii.On 3 July 2023, the Applicant was left a voicemail by the Commission requesting a call back to discuss the minimum employment period issue with the application.
iii.On 17 July 2023, the Applicant was left another voicemail requesting a call back. Soon after, the Applicant sent an email to the Commission advising that he “is happy to have this case dismissed” and confirmed so via telephone. The Commission closed its file.
r)On 30 June 2023, the Applicant lodged an unlawful termination application (C2023/3821) (Unlawful Termination Matter).[23] In respect of the Unlawful Termination Matter the following events occurred.
i.On 1 July 2023, the Applicant was sent a letter by the Commission to his nominated email address noting he may not be eligible for the application as the Respondent may be a national system employer and this would mean he could make a general protections application.[24] And that if so, he cannot make an unlawful termination application.
ii.On 17 July 2023, the Applicant discontinued the Unlawful Termination Matter by telephone. The Commission closed its file.
s)On 4 July 2023, the Applicant lodged the current application before me.
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 15 June 2023. The delay is the period commencing immediately after that time until 4 July 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[25]
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.[26]
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.[27]
Submissions and evidence
The Applicant submitted that the delay was due to stress and anxiety arising from the dismissal which meant he was “unable to function”.[28] The Applicant provided a letter from his GP and a picture of his medication script as evidence.[29]
Before me the Applicant further submitted that he was also awaiting a positive internal review by the Respondent and wished to avoid an acrimonious process.
In relation to the reason for the delay, the Respondent submitted that the Applicant could have submitted his application earlier, but he did not do so.
In supporting its position, the Respondent highlighted the procedural history of the matter and the Applicant’s numerous correspondence with it. The Respondent further submitted that the Applicant’s letter from his GP is merely a repeat of what the Applicant conveyed to the GP and is not significant enough to demonstrate that the Applicant was incapacitated to file an application within the 21-day time period or each and every day of the further 19 days when the delay occurred.
The Respondent submitted that overall, the Applicant’s reasons for the delay should weigh against granting a further time for the filling of the application, and provided several case authorities in support of its position.[30]
In particular, the Respondent directed me to the Full Bench decision in Shaw v ANZ Bank[2015] FWCFB 287 (Shaw), where the Full Bench stated as follows at paragraph [15]:
“…stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in [a] person’s life, and such effects are unfortunately not unusual”.
Findings
It is evident that even the UFD Matter was field 14 days late. This is important because the Commission has in the past found that lodgment of applications in the wrong jurisdiction, but within the time prescribed can be found to be exceptional and extensions of time have been granted for correct applications filed after the time prescribed.[31] That is not the case in the matter before me. Even the UFD Matter was out of time. In any event, for the reasons that follow, the Applicant’s reasons for delay are not satisfactory.
The Respondent’s submissions relating to the Applicant’s capacity to file an application within the 21-day period are compelling. During the 21-day period after the dismissal, the Applicant sent six (6) separate emails to the Respondent but chose not to lodge an application with the Commission within time. The factual circumstances set out above clearly demonstrate that, during the 21-day period after the dismissal the Applicant had capacity to deal directly with the Respondent about the dismissal. He was clearly not entirely “unable to function.”
In any case the medical evidence about the Applicant’s capacity to function is not compelling. The certificate says nothing about the dates of the incapacity or the severity of the incapacity. It does not explain the entire period of the delay after the 21-day period expired.
In fact, before me the Applicant conceded he had the capacity to file an application during the 21-day period but did not do so because he wished to resolve it peacefully with the Respondent.[32] He was entitled to prioritise resolving the matter directly with the Respondent, however, when that had not been achieved within the first 21-days after the dismissal he should have filed the present application within time. He clearly had the capacity to do so. The Applicant was advised in no unclear terms in his interactions with the Respondent that its decision was final and that it would not entertain a change or review of its decision within the 21-day period. The Applicant should have filed his application as soon as possible after the clear position of the Respondent was made known to him.
Although the Applicant did not make the claim, it may be that, in truth, he was unaware of the 21-day time limit. However, even if that were the case, that would not assist him because mere ignorance of the statutory time limit is not an exceptional circumstance. This is made clear in the Full Bench decisions in Nulty v Blue Star Group[2011] FWAFB 975 and Miller v Allianz Insurance Australia[2016] FWCFB 5472.
Having dealt with the 21-day period immediately after the dismissal and my finding that I am not satisfied that the Applicant could not have filed the present application within time, I must deal with the 19-day period of delay (i.e. that period after the 21-day period expired). The factual events above demonstrate that the Applicant had ample capacity to file the present application earlier than 19 days after the 21-day deadline. The fact that he filed the UFD Matter and then the Unlawful Termination Matter demonstrates that he could have filed this General Protections matter earlier. He had the capacity to do so. I reject that he was entirely incapacitated before 4 July 2023. The truth seems to be that the Applicant did not know which was the correct application to file. Again, his ignorance of the correct application is not a reasonable explanation for the delay.
Overall, I am not satisfied that the reasons for the delay are exceptional.
Having regard to the above, I find that the reasons for the delay weigh against granting a further time in filing of the application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that he took action to dispute the dismissal.
Submissions and evidence
The Applicant and the Respondent both agreed that there were email and phone correspondences between the parties relating to the dismissal as set out above.
The Respondent submitted that the correspondences between the parties should be construed as further evidence that the Applicant was not unable to function and thus able to file an application within the time period specified.
Findings
It has been affirmed in a recent Full Bench decision in Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133 (Spenser), that for this factor to be enlivened, there is no need for the applicant to engage in any formal internal process.[33] But rather a mere email correspondence putting the respondent on notice that it disputes the dismissal may weigh in an applicant’s favour. Therefore, in light of the Applicant’s numerous correspondences with the Respondent in relation to his dismissal, there is no doubt that the Applicant has discharged this onus.
Having regard to the evidence, I find that the Applicant took steps to dispute his dismissal, and this weighs in favour of granting a further time in filing of the application.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submitted that it would suffer prejudice if an extension of time were granted.
Submissions and evidence
The Respondent submitted that, if an extension of time were granted, it would be put to the cost and expense of having to defend a meritless case. In the alternative, the Respondent submitted that the absence of prejudice in itself should not justify an extension.
The Applicant’s evidence did not directly engage with this factor.
Findings
Nothing in the submissions of the Respondent evidences any particular prejudice beyond the usual prejudice associated with delay. Of course costs are a usual form of prejudice. The Respondent would have incurred the same whether the matter was lodged within time, or late (as in the present matter). It is a natural and inevitable consequence of matters before the Commission for parties to suffer costs and expense to bring their best case forward.
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. However, at the same time the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[34] Therefore, this is a neutral factor in deciding whether to grant an extension of time.
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.
Submissions and evidence
The matter before me is a general protections claim. It is not an unfair dismissal claim (which, had the Applicant served the minimum employment period, he might have had an arguable case). It is an important distinction that the Applicant did not directly engage with in his submissions. It is difficult to discern any breach of the general protections provisions engaged in by the Respondent.
During the extension of time hearing, I asked the Applicant what workplace right he is alleging to have exercised. However, the Applicant merely noted that he believes he was covered under undue influence and pressure arising out of unrealistic expectations by his supervisor. That is not a proper application of those legislative provisions. The Applicant was “clutching at straws”.
The Respondent submits that I should have particular regard to its jurisdictional objection that the Applicant has not raised any alleged breaches of the general protections provisions.
Findings
Having regard to the matters raised by the Applicant and the Respondent, I find that they necessarily turn on the evidence and that, in the absence of a hearing of that evidence, it is not possible to make a determinative assessment of the merits of the application. The Respondent conceded the same.
However, having regard to the requirements of a general protections claim as opposed to an unfair dismissal, in all the circumstances, I find, on a preliminary assessment basis, that the merits of the application before me are weak.
This is because, in the facts as I understand them (on a preliminary basis), there is nothing to suggest a causal link between the alleged workplace right and the dismissal.[35]
I find that, even on the most generous view of the Applicant’s submissions, the application is weak. Therefore, this factor weighs against granting a further time.
Fairness as between the Applicant and other persons in a similar position
The Respondent raised the issue of fairness as between the Applicant and other persons in a similar position.
Submissions and evidence
The Applicant did not directly engage with this factor in its submissions, and before me, did not add anything further.
The Respondent submitted that its five case law examples highlight that other individuals in the same position have not been granted an extension of time. Therefore, it would be unfair to grant the extension of time.
Findings
As a Full Bench has noted in Perry v Rio Tinto Shipping[2016] FWCFB 6963:[36]
“…this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [Applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”
Furthermore, the Full Bench decision of Spenser further provided as follows as to its operation:[37]
“[39] The s. 366(2)(e) fairness consideration required a comparison between the Appellant and other persons in a like position. This required the Commissioner to identify the comparator. No other person was identified nor are the circumstances pertaining to any other person(s) in connection with an application to the Commission set out. Without that, one cannot identify whether the comparator is or was in a like position to the Appellant. A general reference to other applicants who have advanced similar submissions or are in similar circumstances and whose applications were not granted without the comparators or their circumstances articulated is respectfully erroneous and an approach that visited unfairness on the Appellant based on general impressions about results in other cases that facts of which are unarticulated.”
In light of the same, I note that the most relevant comparator is that set out by Deputy President Sams in Wayne Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting[2015] FWC 1387 (Underwood). In this case, the applicant was in a similar situation as noted in paragraphs [11] and [12] which set out as follows:
“[11] I also note that Ms Cheung’s letter states that the applicant ‘indicated he was unable to lodge the application within the required timeframe’. In other words, Ms Cheung did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period. I also observe that Ms Cheung stated that the applicant only began psychological consultation on 20 November 2014; some 30 days after the statutory time limit for filing his application had expired.
[12] While I am sympathetic to the applicant’s mental condition, ‘elevated levels of stress and anxiety consistent with an adjustment disorder’ do not positively demonstrate that the applicant was incapable of lodging his application, within the 21 day timeframe. Indeed, many dismissed employees suffer from elevated levels of stress and anxiety following termination of their employment. On one view, this is unexceptional, rather than exceptional.”
Although the Commission is not bound by the principle of stare decisis it is apparent that if an extension of time was granted in the present matter it would not be fair to applicants who have previously come before the Commission (in particular the comparator as set out in the case of Underwood) and have similarly had their extensions of time rejected. The Commission’s stance as set out in the Full Bench Decision of Shaw which I referred to earlier has not changed. In other words, stress, shock and confusion, in and of themselves, are not exceptional.
Having regard to those matters, I find that this factor weighs against granting a further time.
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.[38] 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.[39]
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.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An order to that effect will be issued separately [PR764787].
COMMISSIONER
Appearances:
Mr A Sundarlal for himself
Ms T Stevenson & Ms H Fairhall on behalf of the Respondent
Hearing details:
2023
Melbourne (by Video using Microsoft Teams)
3 August.
[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] Exhibit 1, Form F8, Digital Tribunal Book (DTB), p 9.
[4] Exhibit 2, Form F8A, DTB, p 35; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 125.
[5] Exhibit 4, The Respondent’s submissions, DTB, p 75; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 125.
[6] Exhibit 4, The Respondent’s submissions, DTB, p 75; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 126.
[7] Exhibit 4, The Respondent’s submissions, DTB, p 75; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 128.
[8] Exhibit 4, The Respondent’s submissions, DTB, p 75; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 128.
[9] Exhibit 4, The Respondent’s submissions, DTB, p 75; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 128.
[10] Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 129.
[11] Exhibit 4, The Respondent’s submissions, DTB, p 75-76.
[12] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 129.
[13] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 129.
[14] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 130.
[15] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 130.
[16] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 130.
[17] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 131.
[18] Exhibit 4, The Respondent’s submissions, DTB, p 76; Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 131.
[19] Exhibit 3.4, Letter from the Applicant’s GP, DTB, p 63.
[20] Exhibit 3.5, Picture of medication script, DTB, p 64.
[21] Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 133.
[22] Exhibit 3.7, Letter from the Commission acknowledging receipt of unfair dismissal application, DTB, p 69.
[23] Exhibit 5.4, Reason for delay in lodging the Application, DTB, p 133.
[24] Exhibit 3.6, Letter from the Commission acknowledging receipt of unlawful termination application, DTB, p 65.
[25] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[26] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[27] Ibid, [40].
[28] Exhibit 1, Form F8, DTB, p 10.
[29] Exhibit 3.4, Letter from the Applicant’s GP, DTB, p 63; Exhibit 3.5, Picture of medication script, DTB, p 64.
[30] Exhibit 4, The Respondent’s submissions, DTB, p 74-75.
[31] See for example, Matthew Palmer v RCR Engineering Pty Ltd[2009] FWA 1431 & Poulton v Rail Infrastructure Corporation PR966972 (AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005).
[32] At 9:37-10:16 in the recording.
[33] [35].
[34] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.
[35] See Garson v Urban Land Authority [2013] FWC 6586.
[36] [41].
[37] Spenser Clarke v Uniti Group Ltd[2023] FWCFB 133, [39].
[38] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[39] Ibid.
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