Mr Quoc Hung Tran v Littlewoods Services Pty Ltd

[2020] FWC 2814

[2020] FWC 2814

FAIR WORK COMMISSION

DECISION

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

Mr Quoc Hung Tran
v
Littlewoods Services Pty Ltd
(U2020/542)

DEPUTY PRESIDENT CROSS SYDNEY, 29 MAY 2020

Application for an unfair dismissal remedy.

[1] On 16 January 2020, Mr Quoc Hung Tran (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed he was employed, by Littlewoods Services Pty Ltd (“the Respondent”). The Applicant commenced his employment with the Respondent on 25 March 2008. The Applicant claimed that he was notified of his dismissal on 3 December 2019, and that dismissal took effect on 12 December 2019.

[2] Unfair dismissal 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 2 January 2020. The application was therefore lodged outside of the time prescribed and was lodged 14 days after the last day on which such an application could have been made.

[3] On 6 March 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 Applicant had already provided some explanation for being out of time in his Form F2 Unfair Dismissal Application (the “Form F2”), and by letter to the Commission dated 19 February 2020 (the “19 February 2020 Letter”). The Directions were:

1. The Respondent (Littlewoods Services Pty Ltd) is directed to file with the Fair Work Commission (Commission), and serve on the Applicant (Quoc Hung Tran), an outline of submissions, witness statements and other documentary material it intends to rely on in support of its jurisdictional objection to this application by no later than 4:00 pm on 16 March 2020.

2. The Applicant is directed to file with the Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material he intends to rely on in response to the Respondent’s jurisdictional objection by no later than 4:00 pm on 30 March 2020.

3. If a party wishes the Commission to consider any reply material, such reply material must be filed at the Commission and served on the other party by no later than 4:00 pm on 6 April 2020.

4. The jurisdictional objection to the unfair dismissal application filed by the Applicant at the Commission will be determined on the materials filed by the parties per Directions 1 to 3 above. If either party wishes to be heard in person, they can and must apply in writing to the chambers of Deputy President Cross and their request for an in-person hearing will be considered by the Deputy President.

[4] In the Directions Hearing the parties were specifically directed to the provisions of s.394(3) of the Act, and they were advised to address the considerations outlined therein where appropriate.

[5] The parties complied with each of directions 1 and 2 above. The Respondent provided an Outline of Submission and a statement of Mr Nik Lytas on 16 March 2020. The Applicant filed the following five documents on 29 March 2020:

1. The Applicant's Responses to Respondent's Submission

2. Evidences to Support the Applicant's Response

3. The Applicant's Responses to the Respondent's witness statement

4. The Applicant's Responses to the Respondent's warning incidents

5. Evidences to support response to warning incident.

[6] Neither party availed themselves of the opportunity to provide further reply as allowed by paragraph 3 of the Directions.

Relevant Facts

[7] The relevant facts of the matter as disclosed by the materials filed are:

(a) The Applicant was a Certified Practising Accountant of the Respondent, and had been employed by the Respondent since 25 March 2008. The Applicant was paid a salary of $112,000 per annum, including superannuation of 9.5%.

(b) The Respondent had concerns that the Applicant was not performing to the standards required by the Respondent, and made a decision to place the Applicant on Performance Management in an attempt to improve his performance. The Applicant denied performance deficiencies. On 2 December 2019, Kevin Forder, and Mr Nik Lytas, both Directors of the Respondent, met with the Applicant and provided him with a letter and a Performance Improvement Plan.

(c) Later on 2 December 2019, the Respondent received an email from the Applicant that advised in part as follows:

“Dear Nik,

Thank you for your email.

I can no longer work under stress, at least today. I will leave office early today.

The case has been being built unfairly against me. I formally request for redundancy as my employment with LWS is in question.

I will respond to your warning letter and return to work when I am no longer stressed.”

(d) The Applicant left the Respondent’s office soon after the above email and subsequently provided a medical certificate for the period of 3 December to 4 December 2019 inclusive.

(e) On the morning of 3 December 2019, the Applicant contacted Legal Aid and made an appointment for 14 January 2020, regarding his employment issues.

(f) The Applicant sent an email at 3.50pm on 3 December 2019, in the following terms:

“Dear LWS Directors (Nik & Kevin)

Thanks again for the warning letter which details the incidents including my multiple emails copy in the previous owner and also my performance since 01 July 2019.

I should understand that the business is not profitable as it used to, I should also understand that building a successful business requires resources, capital, tremendous efforts, not mentioning many business failures. What I can do to a business is to work hard, deserve my pay. I had never asked LWS for a pay rise during my employment. But when I am no longer needed for the business, I will also look for a fair treatment, unfortunately being fair or unfair sometime in the eye of the beholder !.

At our first meeting, you advised it was not LWS's intention to make any redundancies You advised that clients complained about the bills, everybody will be under pressure You also suggested if I wanted to know how much my entitlement would be.

5 months later at the meeting with me, you advised the finance team was not performing, not to the level of the business required.

You advised deadlines were not meet.

You advised you had an interview the following day (3 December 2019) then the finance team meeting next.

As it was not expressly straightforward talking but you sent your audience the implication that the pressure was there, we were not offering any redundancies, it would be your call !

Any big issues for SCTI last two quarters and year end audit? NONE

Any big issues for Scor last two quarter, except the mistake APRA query? what is SCOR scope ? how many APRA queries LWS have had since its operation for other clients?

Have I missed any deadline? any client/legal implication? even the KPMG audit request, the deadline Friday, we submitted Thursday but you made it a big deal and one of the trigger point listed on your warning letter.

How many emails Ross Littlewood have been copied in since you advised staff not to copy?

We should be reasonable , if small things become big, the big things become small. It is impossible for me to perform.

I want to continue employment with LWS but, given the business sent out its implication, and implied intention, the pressure that I have , the "performance" view of management, I have no choice but please accept this email as notice of my resignation, 4 week notice, my last day at LWS will be 01 Jan 2020.

Because some of my statements used in the warning letter, if read carefully they have legal implication if they are correct and accurate, it is not my desire to have meeting on my own again.

Whilst still under stress, but this notification should come to you as soon as possible given the coming Christmas. I will spend rest of the time at LWS handing over SCOR and SCBL and doing a bit here and there until the office close for Christmas.

God bless John Tran” (Emphasis added)

(g) Mr Lytas responded in writing thirty minutes after the above email and accepted the Applicant’s resignation.

(h) It was subsequently agreed that the Applicant’s last day of employment would be 12 December 2019. At no time between 3 December 2019 and 12 December 2019, did the Applicant seek to withdraw his resignation.

(i) Mr Tran requested a reference letter and one was subsequently provided on 9 December 2019.

(j) Mr Tran was paid the balance of his notice and all accrued leave on 14 December 2019.

(k) The Form F2 was not filed until 16 January 2019.

Consideration

[8] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).”

[9] As the Application was lodged outside of the 21 day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:

“(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”

[10] It is clear from the structure of s.394(3) 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.394(3) 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] FWC 479 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 the Form F2 the Applicant explained the lateness of his application as follows:

“I called Legal Aid but the appointment could not be made in 21 days since dismissal date taking effect. My appointment with Legal Aid 14 January 2020. Legal Aid advised to prepare the case and lodge with FWC. It took me time to prepare the case and lodged today.”

[16] The above explanation was more fully detailed in the 19 February 2020 Letter to the Commission. Therein, the Applicant explained the delay as follows:

“The decision made to resign after 11.5 years with the job was not easy, I had given a lot of heavy thoughts during the night 02 December 2019 following receipt of the warning letter. On morning 03 December 2019 I called Legal Aid NSW, I was advised the need of booking an appointment and the earliest available appointment was on 14 January 2020, which I had no choice but accepted the time allocated (Legal Aid confirmation enclosed).

I waited until 14 January 2020. NSW Legal Aid adviser asked me whether the case had been lodged with FWC, I replied no. The adviser went through documents/my emails exchange with Littlewoods, asking questions then finally directed me to Fair Work Act 2009 sections 386 & 387, told me to read through FWC website to be aware of the process, lodged the case as soon as I could as there was a time limit for lodging.

I went home to study FWC process noting the required 21 days, I called FWC explaining my circumstances and I was advised I could lodge the case and provided reasons for late lodgement. (call record to FWC enclosed).

These circumstances warrant the grant of an extension of time to file the case because:

•  Before taking legal action against anyone I should thoroughly consider the case, its legal ground & merit. I am not legal expert so I have to wait to get proper legal advice otherwise it will waste everybody time and the FWC time.

•  Before 14 January 2020, I had not had knowledge of FWC and its required 21-day limit, I learn all these when I encounter my current employment issue.

•  I would not ignore the timeframe if I had known the timeframe.

•  If extension of time for my case is not granted, there would be many more cases in the future like mine where the public could not get legal advice from Legal Aid in time to lodge the cases with FWC, this would limit Legal Aid services to socially and economically disadvantaged people across NSW.

•  I think a reasonable person would have done what I did in these circumstances.”

[17] In the Applicant's responses to the Respondent's submission, the Applicant gave further insight into his thought processes between 3 December 2019, and 14 January 2020. There he outlined the following:

“The Applicant’s future financial position was uncertain, he had mortgage to pay, his overseas travels booked well before 3 December 2019 without the expectation of sudden loss of job, he chose the path that minimized income loss by immediately looking for work (Evidence HH, HH1), the path that helped with knowledge. The Legal Aid adviser spent about 30 minutes on guidance path moving forward and the case was in the Applicant’s own hand since then, the Applicant found the experience gained through this process helpful for the Applicant’s qualification as a NSW JP.

The Respondent notes that there is no evidence from the Applicant about what other steps he took to obtain legal advice, or steps he took to inform by way of research on the process for filing the Form F2 between 3 December 2019 and 14 January 2020. Indeed, by his Responses to the Respondent’s Submission, the Applicant seems to have prioritized other matters.”

[18] While I agree with the Respondent’s submission that the Applicant could have commenced taking steps to obtain advice and undertake research from 3 December 2019, I note that dismissal took effect on 12 December 2019, and correctly, delay should be calculated from that date, with the Form F2 needing to be filed by 2 January 2020.

[19] I find that there was no acceptable explanation for the Applicant’s delay in filing the Form F2. The Applicant did nothing from 3 December 2019, to 14 January 2020, to advance his claim. Indeed, he seems to have prioritized other things such as looking for work. Even after apparently becoming aware of the 21 day limitation period upon finally attending the Legal Aid appointment, the Applicant did not promptly pursue his claim, taking a further two days to file his claim. Accordingly, this factor weighs in the Respondent’s favour.

(b)  Whether the person first became aware of the dismissal after it had taken effect

[20] This is not a relevant factor in this matter.

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

[21] The Applicant did not challenge his dismissal in any way. Nonetheless, the Respondent made no submission regarding this consideration. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

[22] Again, the Respondent made no submission regarding this consideration. Accordingly, I consider that this is a neutral factor.

(e) Merits of application

[23] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.

[24] 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 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated 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.”

[25] There are a number of facts in this matter, however, that are not contested. In particular, after a period of consideration while on a period of personal leave precipitated by stress, the Applicant tendered a written resignation. That resignation was accepted by the Respondent. The Applicant thereafter remained in employment for a further seven working days before ceasing employment by way of the resignation on the agreed date of 12 December 2019.

[26] In Bupa Aged Care Australia Pty Ltd v Tavassoli 1, a Full Bench of the Commission, after a consideration of authorities regarding termination at the initiative of the employer and forced resignation, observed:

“Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s 386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1)There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2)A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” (emphasis added)

[27] I consider that the Applicant will have difficulty satisfying either limb of s.386(1) of the Act, particularly in the circumstances where he voluntarily tendered his detailed resignation not in the “heat of the moment”, but rather after a period of consideration. Further, the Applicant did have a real choice regarding whether to resign. Had he not so resigned he would have continued with the performance management process. In these circumstances, the question of the merits of the application weighs in the Respondent’s favour.

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

[28] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[29] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight were acceptable reason for delay and merits of the application. Both factors weighed in the Respondent’s favour.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1 (2017) 271 IR 245; [2017] FWCFB 3941, at [47].