Ms Lara Taylor Adams v Commonwealth Bank of Australia T/A Commonwealth Bank
[2015] FWC 6992
•9 OCTOBER 2015
[2015] FWC 6992
The document attached ([2015] FWC 6992 - signed on 9 October 2015 ) wholly replaces the document previously issued with the reference [2015] FWCD 6347.
This is to fix an error in the reference number.
Susan Robertson
Associate to Senior Deputy President Hamberger
Dated: 9 October 2015
| [2015] FWC 6992 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Lara Taylor Adams
v
Commonwealth Bank of Australia T/A Commonwealth Bank
(C2015/3332)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 9 OCTOBER 2015 |
Application to deal with contraventions involving dismissal – extension of time for lodgement.
[1] Ms Lara Taylor Adams (the applicant) has lodged an application with the Fair Work Commission (FWC) under s.365 of the Fair Work Act 2009 (the FW Act) alleging that her dismissal by the Commonwealth Bank of Australia (the CBA, the respondent) contravened s.340 and s.351 of the Act.
[2] The dismissal occurred on 29 May 2015 and the application was lodged on 15 July 2015, some 26 days out of time.
[3] The application is before me to determine whether to allow an extension of time for the lodgement of the application.
[4] A hearing was held in Sydney on 11 September 2015. At the hearing the applicant was represented by Mr J Dawson, solicitor, and the respondent by Ms A DeBoos, solicitor. The applicant gave evidence on her own behalf and was cross-examined by Ms DeBoos.
The Evidence
[5] The applicant commenced employment with the respondent on 3 March 2014. She was employed as an Executive Manager – Group Strategic Initiatives. This was a senior position with a remuneration package of $195,000. 1 Prior to commencing employment with the respondent, the applicant had worked for various financial institutions in the United Kingdom over a period of seven years.
[6] On 17 August 2014 the applicant was given a performance review covering the period from the commencement of her employment to the end of the 2013/14 financial year. The reviewer of her performance was Mr Christopher Russell (to whom she reported). He rated her overall performance against her key performance indicators (KPIs) as ‘Valued Contribution’. This was on a scale from ‘unsatisfactory’, ‘performance requires development’, ‘valued contribution’, ‘superior contribution’ to ‘exceptional contribution’. He rated her overall ‘People Capabilities’ rating as ‘Effectively Displays’.
[7] In his ‘overall comments’ Mr Russell said:
‘Lara has had a profound impact on Project TRANSFORM in the 3 short months since she joined CBA. A quick study and consummate team player, she has elevated everyone’s performance accepting only the best from herself, her team and her colleagues. She deftly combines these attributes with conviction and moral courage to tirelessly demand only the best possible outcomes for customers and the Group. She has generated strong momentum on a positive trajectory into FY15, and I expect great things from her and her team in the coming year.
[8] On 1 February 2015 the applicant had an interim performance review, for the period 1 July 2014 to the end of the calendar year. Mr Russell indicated the applicant was ‘Tracking Well’ against her KPIs. In a concluding section in which Mr Russell was invited to summarise the applicant’s ‘key strengths to leverage’ he said:
‘Possesses strong project management experience and skills with a strong bias towards execution and implementation. Broad experience includes large technology implementations and consulting experience domestically and internationally. Possesses deep commitment to deliver high-quality outcomes and holds herself to extremely high standards.’
[9] In response to an invitation to ‘Summarise key areas to improve/develop further’, Mr Russell said:
‘Continue to develop executive presence and refine senior stakeholder management skills focusing on delivery in order to maximise effect. Engage in projects and programmes that can fully leverage your breadth of experience consulting and biased towards execution.’
[10] On 22 April 2015 the applicant advised the respondent’s human resources department that she was pregnant.
[11] On 29 April 2015 the applicant met with Mr Russell for their usual one-to-one monthly meeting. According to the applicant’s witness statement:
‘Initially the tone of the meeting was positive but after a short time Mr Russell became somewhat strident and said words to the effect, “I’ve had a look at the documents submitted when you applied for your role and you haven’t supplied your Six Sigma Black Belt certificate… Remind me, when did you get it and why don’t we have a copy?” I said words to the effect, “I obtained it when I worked for UBS in London. So far as I can remember I uploaded all my certificates and proof of qualifications or provided them in person to Penny Galwey the CBA Human Resources Specialist prior to accepting the position. It should be there. It’s not been mentioned before; is this an issue?” Mr Russell replied, “Yes. My view is that the qualification is a fundamentally important part of your role, so I suggest you get it.” I said “okay I’ll go through my things and if necessary go back to UBS or the qualifying agent to get a copy.” 2
[12] On 27 May 2015 the applicant advised Mr Russell of her pregnancy. The following day she received a request from him to schedule a meeting. The meeting took place on 29 May 2015. According to the applicant’s witness statement Mr Russell said to her words to the effect:
‘” Your performance is unacceptable. Your coaching of Green Belts has not been good. You are not delivering. You say you have a Black Belt Certification and it was provided to HR but they have no record of it. You’ve failed to produce a copy. This is not acceptable and I’m terminating your employment forthwith.”
[13] According to the applicant’s witness statement she was then escorted from the building by a representative from Human Resources, whom she told she was shocked by what had happened and would be challenging the accusation to make things right. 3 Subsequently she received a letter dated 1 June 2015 signed by Mr Russell, formally terminating her employment in writing.
[14] On 10 June 2015 the applicant contacted Maurice Blackburn Lawyers (MBL) where she spoke to a paralegal named Tim. In that discussion, amongst other information, she provided him with a chronology of events and her remuneration particulars and position/level.
[15] In a further discussion with Tim she asked ‘Can I make a claim for unfair dismissal?’ According to her witness statement Tim replied ‘You earn more that the threshold but a big organisation like CBA will have an Enterprise Agreement which would mean you are still eligible to lodge an application for unfair dismissal with the Fair Work Commission. You better complete the form as soon as possible. There is a 21 day time limit from the day you were sacked. When you set out the details you must say why your sacking was unfair and whilst you can add in evidence you have got to focus on the reasons set out in the letter of termination and what was said at the meeting when you were sacked.” 4
[16] During this discussion it emerged that MBL was involved in a case against the CBA in relation to a project on which the applicant had been working. Tim told the applicant that there was a ‘definite chance that there is a conflict issue’ and that MBL might not be able to act for her. She decided not to proceed with MBL. 5
[17] On 15 June 2015 the applicant accessed the FWC website and completed the questionnaire on that website to confirm if she was eligible to lodge a claim for unfair dismissal. One of the questions asked if the applicant was covered by an enterprise agreement or a modern award. While the applicant did take a look at the CBA enterprise agreement she did not examine it in detail 6. She decided to ring LawAccess NSW for clarification. She provided basic details including her remuneration and was told she would be called back by a lawyer. Approximately 30 minutes later she received a call from LawAccess by a person who did not identify themselves by name. She again went through the details relating to her employment (including her salary level).
[2] According to her witness statement, the applicant said words to the effect:
‘“from my research I see there is a CBA enterprise agreement that is relevant.
After a pause he said words to the effect:
yes, it appears to cover someone at your level.’
[18] Attached to the applicant’s witness statement was a letter from LawAccess confirming that she had received legal advice from their service on 17 June 2015 in relation to employment law issues. 7
[19] On 19 June 2015 the applicant lodged an unfair dismissal application (U2015/6014) under s.394 of the Act and a conciliation conference was set down for 9 July 2015.
[20] On 25 June 2015 the applicant contacted Carney Lawyers (Carneys) and in the period to 30 June supplied documentation which included a copy of the Six Sigma Black Belt Certificate (which she had now obtained), a history of her employment and details of earlier advice she had obtained from MBL and LawAccess.
[21] According to the applicant’s witness statement, during discussions with Carneys on or about 30 June 2015 it was brought to her attention that the action taken by CBA might be unlawful and that the termination of her employment ‘constituted adverse action.’ 8
[22] On 1 July the respondent filed its response to the unfair dismissal application in which it raised a jurisdictional objection. According to the applicant’s witness statement, she immediately forwarded the document to Carneys and discussed the matters raised with them, in the context of the forthcoming conciliation conference on 9 July 2015. The applicant said she wished ‘if it all possible to avoid litigation and take a conciliatory approach.’ She instructed Carneys to write to the respondent addressing in detail the matters raised by Mr Russell at the meeting on 29 May 2015 and in the letter dated 1 June 2015 and to send to the respondent a copy of the Six Sigma Black Belt Certificate.
[23] During her cross-examination, the applicant said that she was confused when she saw the respondent’s jurisdictional objection as she thought she was ‘covered’.
‘I remember thinking, hang on a sec, this isn’t what I was told. I have had two legal opinions previously. This doesn’t make sense.’ 9
[24] On 6 July 2015 Carneys sent correspondence to the CBA detailing the applicant’s claim and providing documentation in support of her position. The letter included the following:
‘Our client prepared and filed the Application to the FWC before taking legal advice. We have now had the opportunity to take detailed instructions…’
[25] There then followed a chronology of events. The letter continued:
‘These facts lead to the inescapable conclusion that the real reason for the termination has nothing to do with any shortcoming of our client. Rather the grounds for dismissal are a pretext to terminate an employee who was to become eligible for maternity leave and no doubt and inconvenience. Having regard to the context of our client’s dismissal and her previous good record which stands in stark contrast to the allegations of underperformance, it is clear that there is an obvious causal connection between the notification of our client’s pregnancy and her dismissal.
In the event the matter does not resolve at the conciliation conference our client will on our advice withdraw the Unfair Dismissal application and lodged an application with the Commission to deal with a general protections dismissal dispute pursuant to section 365 of the Fair Work Act 2009.
We appreciate that our client will need to seek leave for an extension of time, however, given the Bank has been on notice of the dispute since the lodgement of the Unfair Dismissal Application, we believe there are strong grounds believed to be granted.’ 10
[26] The parties attended the conciliation conference on 9 July 2015 which was reconvened on 13 July 2015. No settlement was reached between the parties at conciliation. On 15 July 2015 the Applicant withdrew U2015/6015 and lodged with the FWC an application under s.365 of the Act.
[27] Under cross examination the applicant was asked why, after having received the response of the CBA that identified that she was not covered by the enterprise agreement, did she still instruct her solicitors to go ahead with the unfair dismissal claim she replied:
‘…I believe, at that point, and I may be getting my chronology wrong, but it's either that day or a day either side. The conciliation had already been set and we were already in communication with CBA at that point, and they were going to go ahead and actually have the conversation, so rather than make a big deal out of, you know – or should I say - it was already a big deal, should I say make it bigger than it needed to be, I thought this would be a more straight forward way of going about it. I had representation at that point. I felt like I was going to be, you know, looked after.’ (Transcript PN159)
[28] In further questioning on this point:
‘Yes, but this is about the type of claim that you made. They had come back to you and said, "You are barred from making a claim." Your own solicitors at that day had told you that you were barred from making a claim?---Mm-hm.’(Transcript PN163)
and
‘Yet you still instructed your solicitors to continue with the claim?---Because there was a conciliation date. We're already having back and forth with CBA, and I assumed that would be the best way to get it to an outcome.’ (Transcript PN164)
[29] During her cross-examination the applicant agreed that no one had ever mentioned to her, either when she was first employed by the respondent or during her time with them, that she was covered by an enterprise agreement. 11
Consideration
[30] Section 366 of the FW Act sets out the relevant time period for filing an application to deal with a general protections dispute under s.365. Section 366 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).
- (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.
[31] It is established that:
‘…the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.’ 12
[32] I will consider each of the factors referred to in s. 366(2) in turn.
The reason for the delay
[33] The applicant first lodged an unfair dismissal application. She did this within the 21 day period. I am satisfied, on the basis of the evidence, that while the applicant understood she was above the ‘salary cap’ she was eligible to lodge such an application because she was covered by the respondent’s enterprise agreement. I also accept that she formed this view based on the advice she had received both from LawAccess (a State government agency) and from MBL. It was reasonable for the applicant to rely on this advice.
[34] At some point after the applicant had engaged Carneys it is clear that she was advised that she was not covered by the enterprise agreement – and therefore she was not eligible to make an unfair dismissal application. While the exact date she received this advice is unclear, I am satisfied that it was only a few days before the scheduled conciliation conference. The applicant decided not to withdraw her application at that point but to proceed with the conciliation process to see if the matter could be resolved by agreement without the need for formal litigation. Again, I consider that was a reasonable course of action in the circumstances. As soon as it became clear that the matter would not settle she withdrew her unfair dismissal application and lodged her general protections application.
[35] Having regard to all these circumstances I consider that there was a reasonable explanation for the delay in making the general protections application.
Action taken by the applicant to dispute the dismissal
[36] The applicant filed her unfair dismissal application within the 21 day period allowed for such applications. This is a factor that weighs in favour of the applicant.
Prejudice to the employer
[37] I am satisfied that there would be no particular prejudice to the employer from allowing the extension of time. I consider this to be a neutral factor.
The merits of the application
[38] The applicant has at least an arguable case. I consider this to be a neutral factor.
Fairness between the applicant and other persons in a like position
[39] I consider this to be a neutral factor.
[40] In summary I find that there was an acceptable explanation for the delay in making the general protections application, and the applicant – by lodging her unfair dismissal application within time – had put the employer on notice that she was contesting her dismissal.
[41] The circumstances were in my view exceptional. This is not a case where an applicant decided to lodge an unfair dismissal application, and then simply changed her mind. Rather the applicant mistakenly lodged an unfair dismissal application believing that the Commission had jurisdiction to entertain her claim. This was of course wrong. Being wrong about the law, in itself, is certainly not an exceptional circumstance. However the applicant was acting on advice both from MBL and LawAccess. The applicant should in particular have been able to rely on the advice from LawAccess, as a State government agency. Unfortunately that advice was incorrect. As the Full Bench in Nulty v Blue Star Group stated, generally speaking acting on incorrect advice from a relevant government agency will constitute exceptional circumstances for the purposes of s.366(2). 13
Conclusion
[42] Having regard to all the circumstances, taking into account the factors in s.366(2), I am satisfied that it would be appropriate to allow the applicant an extension of time to allow her application under s.365 of the FW Act to proceeed. An Order [PR572769] will be issued extending the date for lodgement of this application.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr J Dawson – solicitor for the Applicant
Ms A DeBoos – solicitor for the Respondent
Hearing details:
Sydney
2015
11 September
1 PN55
2 Exhibit A1, paragraph 7
3 Exhibit A1, paragraphs 10 - 12
4 Exhibit A1, paragraph 15
5 Exhibit A1, paragraph 16
6 PN87-101
7 Attachment LTA – 7 to Exhibit A1
8 Exhibit A1, paragraph 23
9 PN152
10 Attachment LTA – 8 to Exhibit A1
11 PN59-64
12 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]
13 Ibid. at [26]
Printed by authority of the Commonwealth Government Printer
<Price code C, PR572789>
0
0
0