Mr Paul Perusic v Commonwealth Bank of Australia

[2010] FWA 9061

[2010] FWA 9061

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Paul Perusic
v
Commonwealth Bank of Australia
(U2010/12473)

COMMISSIONER SMITH MELBOURNE, 26 NOVEMBER 2010

Jurisdiction; extension of time sought; application refused.

INTRODUCTION AND BACKGROUND

[1] Mr P. Perusic has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). On 17 August 2009 Mr Perusic resigned his employment from the Commonwealth Bank of Australia (CBA). Mr Perusic argues that it was, in fact, a termination at the initiative of the employer.

[2] Mr Perusic lodged his application on 16 September 2010. CBA lodged its notice of objection to the Tribunal dealing with the matter on two grounds. The first was that it was out of time and the second was that there was no termination at the initiative of the employer. The second objection was not pressed.

[3] In the proceedings, Mr Perusic represented himself and Ms A. Peters represented CBA.

[4] I turn now to deal with the out of time question.

[5] Following what Mr Perusic stated was his termination of employment he took no action until he received an exit survey from the CBA. Mr Perusic said that the reason he took no action was that he was suffering from depression over losing his job. Whilst I do not doubt that the loss of employment was an unhappy time for Mr Perusic, so it is for all persons who lose employment in circumstances which are not of their choosing. During the proceedings Mr Perusic was asked if he had any medical evidence of the depression he said that he suffered. He did not present any evidence.

[6] The exit survey 1 was sent to Mr Perusic on or about July 24 2009. In his letter of reply2 to the exit survey Mr Perusic outlined a number of concerns which led him to state that if it was up to him he would still be employed by the CBA and it was not his choice to resign. He added that “now that I no longer work for the Commonwealth Bank, I have not been so happy, and my stress has reduced a significant amount.”3

[7] At the end of his letter Mr Perusic appeared to be seeking some form of compensation from the Bank otherwise he foreshadowed that he would be taking the matter further. On 4 September, Ms N. Lawson from CBA rang Mr Perusic to advise that an investigation would take place on the issues he raised. On 27 October 2009, Ms Lawson replied, in writing, to Mr Perusic advising that the Bank had investigated his allegations and had been “unable to substantiate your claims”. 4

[8] By letter dated 29 March 2010, 5 Mr Perusic wrote to Ms Lawson disagreeing with the outcome of her investigations and stating that he believed that an independent investigation should have taken place. Importantly, Mr Perusic stated in that letter that he had gained independent legal advice for this matter. By letter dated 13 May,6 Ms Lawson replied to Mr Perusic advising that CBA did not consider it appropriate to review the events further.

[9] On 14 May 2010, 7 Mr Perusic wrote to the Chief Executive Officer of CBA again raising his concerns and restating that he has gained independent legal advice and that “the firm is willing to take my case”.

[10] By email dated 3 August 2010, Ms K. McLennan, Executive General Manager, Talent and Business Unit Human Resources, replied to Mr Perusic. She advised that a further investigation had been completed in relation to the issues he raised which concluded that whilst there was scope for improvement in some of the matters raised, the CBA considered the matter closed. It stated:

“However, I can confirm that the termination of your employment was the result of writing an inaccurate letter to a client which resulted in financial loss to the bank, after previous documented performance counselling on this same issue. The issue was one of a number of performance issues associated with your work, which had included customer complaints and policy and procedure breaches as documented in a first and final warning which had also been issued to you.” 8

And later:

“Paul, this investigation is the final step that the Bank intends to take in relation to this matter. From the Bank’s point of view, this matter is now closed. It goes without saying that the Bank will not be depositing $80,000 into your account as requested.”

[11] On 3 September 2010, Mr Perusic sent another email contesting the mattes raised in the email of Ms McLennan. By email dated 9 September, Ms K. Blundell, Executive Manager, RBS Human Resources, responded advising that: Paul the investigation was the final step that the Bank intends to take in relation to this matter. As far as the bank is concerned, the matter is now closed. 9

THE SUBMISSIONS

[12] Mr Perusic puts a simple proposition. He argues that:

• He was depressed as a result of the termination and as a consequence did not take any action until the CBA sent him an exit survey.



• He sought to resolve the matter with the CBA in the first instance.



• The CBA continued to investigate his complaints and it was not until the email from Ms Blundell on 9 September that he knew that the CBA would no longer engage with him.



• His application was made within 14 days of the final email from the CBA.

[13] For CBA, Ms Peters submitted that there were a number of key timeframes which ought to be taken into account where Mr Perusic had no reasonable explanation for delay. Ms Peters submitted that the first delay was from the time Mr Perusic was dismissed until he wrote the letter to CBA in response to the exit survey and that was 39 days. The second delay was from the time that Ms Lawson advised Mr Perusic that she had been unable to substantiate his claims on 27 October 2009, until he further challenges such finding on 29 March 2010. Ms Peters submitted that this is a period of 153 days delay. The third and final delay was from the email sent on 3 August until the lodgement of the application on 16 September 2010, a further 44 days.

[14] Ms Peters submitted that these delays are unexplained and the Tribunal should not extend time.

THE LEGISLATION

[15] Section 394(2) and (3) of the Act provide:

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(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.

[16] Before the Tribunal can extend time it must be satisfied that there are exceptional circumstances. In addition there are certain factors which must be taken into account.

CONCLUSION

[17] There is much force in the submission of Ms Peters that there are significant delays for which there are no reasons advanced other than CBA was investigating the matter. Even if I were to accept that the first delay of 39 days was due to a medical incapacity, Mr Perusic appeared to be progressing the matter from that time in a considered manner. Indeed, from his own records he had sought and obtained independent legal advice. 10 Whilst ignorance of the statutory provision does not assist, the fact that independent legal advice was obtained is a factor which, in my view, weights against a finding that exceptional circumstances exist.

[18] The argument advanced by Mr Perusic that the final advice was only given on 9 September 2010 cannot be sustained in that this email clearly referred to the earlier email of 3 August 2010.

[19] Finally, Mr Perusic seeks a finding that because an employer sought to investigate allegations raised following a termination of employment then that is grounds for an extension of time. I am unable to conclude, in the circumstances of this case, that it would be an exceptional circumstance for an employer to investigate serious allegations following the termination of a person’s employment. With respect to him, Mr Perusic appears to be of the view that whilst any form of email engagement is alive, that constitutes exceptional circumstances. On the facts of this case I find there are no exceptional circumstances which would lead me to exercise discretion and extend time.

[20] The application by Mr Perusic is dismissed.

COMMISSIONER

Appearances:

P Perusic the applicant on his own behalf.

A Peters on behalf of the Commonwealth Bank of Australia.

Hearing details:

2010.

Canberra;

November, 24

 1   The exit survey appears to be sent to employees who resign or retire.

 2   Dated 25 August 2009.

 3   Ibid, paragraph 2.

 4   Exhibit P1, letter of 27 October.

 5   Documents provided by Mr Perusic, attachment AI.

 6   Exhibit P1.

 7   Documents provided by Mr Perusic, attachment AJ.

 8   Ibid, attachment AM.

 9   Ibid, attachment AO.

 10   Ibid, attachment AI and AJ.

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