Navpreet Singh Sandhu v Illion Australia Pty Limited

[2020] FWC 1816

[2020] FWC 1816

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Navpreet Singh Sandhu
v
Illion Australia Pty Limited
(C2019/7894)

COMMISSIONER YILMAZ MELBOURNE, 9 APRIL 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied

[1] On 25 December 2019, Mr Navpreet Singh Sandhu lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Sandhu was employed by Illion Australia Pty Limited (Illion) on 18 March 2019 and he tendered his written resignation via email on 25 November 2019 giving four weeks’ notice. Mr Sandhu and his team leader mutually agreed that Mr Sandhu’s last day of employment would be 3 December 2019. Illion paid Mr Sandhu the balance of the notice period in lieu including his entitlements. Mr Sandhu subsequently left Australia on 20 December 2019 for India and returned on 19 January 2020.

[2] Initially Mr Sandhu contended that his application was within the 21 days, but then ultimately acknowledged it was lodged two minutes late. Mr Sandhu submits that he was forced to resign because Illion assigned him with “junior”¹ duties, which he says was contrary to the job advertisement and the “basis”² of his employment.³ He further submits he exercised a workplace right by challenging the duties he describes as “junior” assigned to him, and consequently Illion performed a “revengeful explicit role change”⁴ by directing the performance of duties and initiating a performance management process.⁵

[3] Illion submits Mr Sandhu was not dismissed but had resigned during a performance improvement process. It further submits that it accepted Mr Sandhu’s resignation in writing.

[4] In response to Illion’s statement that he resigned during a performance improvement process, Mr Sandhu submits there was no issue with his performance and the warning was issued to him after he challenged the duties assigned to him which he says were not in the job advertisement and were inconsistent with his position. He submits a performance improvement process can only apply where the volume of work or standard of quality produced is not met.⁶

[5] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged two minutes late.

Applicant’s submissions

[6] Mr Sandhu was engaged in the position of Technical Business Analyst reporting to the Product Manager, Delivery Platform - Bureau Services.

[7] He submits that the duties assigned to him described as “bug triage”⁷ were demeaning, and this resulted in his view in the breach of the Act. He submits that the industry bible ‘BABOK’ (Business Analysis Body of Knowledge) is an authority utilised in the profession and course curriculum of NSW TAFE at Advanced Diploma level and this document supports his submission. He submits the work assigned to him is performed by “fresh technical graduates”⁸ and not for someone with 12 years of experience in Australia as a programmer and business analyst.⁹

[8] He further submits he agreed to perform tasks outside of his position because an employee went on leave, but the continuation of those assigned duties once the employee returned was unfair and resulted in a change to his role.¹⁰ He further submits that Illion’s insistence that he perform those tasks which he refused to perform is not a performance issue, but is a change to his employment which he says is a breach of the Act.¹¹

[9] Mr Sandhu took offence to not only the direction to perform various tasks he characterised as beneath him, but also to the warning issued to him. He submits that these collective actions caused him mental trauma and bad health, leaving him with no option but to resign.¹²

[10] Mr Sandhu submits his forced resignation is in breach of ss.340 and 343.¹³

[11] In his application, Mr Sandhu also contends he was discriminated against by Illion and that the Act was contravened when:

•  No action was taken when a fellow employee yelled at him after he requested notices of meetings to be sent in advance as opposed to one to two hours of the meeting;¹⁴

•  No action was taken against his manager who pulled him aside and stated that he would receive a negative performance assessment which would affect a salary adjustment and/or promotion if he did not perform the duties that he describes as junior;¹⁵

•  Illion denied him an opportunity to work from home;¹⁶

•  Forcing him to write release notes;¹⁷ and

•  Illion said that all business analysts do bug triages and so should he. However, the other business analysts were promoted from the support team and it was a condition of their promotion. ¹⁸

Respondent’s submissions

[12] Illion submits that Mr Sandhu resigned because he was dissatisfied with his role. It submits that it was within its rights to request Mr Sandhu to perform the tasks that formed his role and the duties he was asked to perform also formed the responsibilities of other employees in like positions. Illion objects to the allegations made by Mr Sandhu.¹⁹

[13] Illion also submits that as Mr Sandhu refused to perform the inherent duties of his role on multiple occasions, this led to management initiating a performance improvement process. It submits that Mr Sandhu was provided with a job description (which Mr Sandhu submits was only given to him when he challenged the duties he was directed to perform) and he received a written warning dated 15 October 2019. The warning refers to a number of counselling sessions regarding his disputation over the tasks assigned to him. The warning also refers to a follow-up period where his performance was to be monitored and assessed.

[14] Illion submits that a follow-up feedback session took place where Mr Sandhu was provided with both positive and constructive feedback and he was advised that his performance would continue to be monitored.

[15] It submits Mr Sandhu resigned two weeks after the feedback session.²⁰ Illion also provided Mr Sandhu’s resignation email of 3 November 2019 at 10.08am where he describes his resignation providing four weeks’ notice as forced because he is expected to perform junior duties. Illion also tendered the email accepting Mr Sandhu’s resignation at 3.11pm of the same day.

[16] Illion confirmed that management met with Mr Sandhu on 3 December 2019, the variation to his last day of employment. Mr Sandhu’s last day of employment was 3 December 2019 and the balance of his notice period was paid in lieu.

Consideration

[17] On 10 March 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[18] General protections applications involving dismissal must be made within 21 days.

[19] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

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

[20] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)²¹ where it was held that:

“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 regular occurrence, even though it can be a on 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.”22

[21] I now turn to Mr Sandhu’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[22] The general protections involving dismissal application was lodged with the Commission on 25 December 2019.

[23] In his Outline of Argument, Mr Sandhu submits two reasons his application was lodged out of time. Firstly, he claims that while he was overseas in India on “approved leave”²³, he suffered “seasonal sickness”²⁴ due to the temperature change from Australia to India. He submitted his flight itinerary as evidence of his departure from Melbourne on 20 December 2019 and arrival in India on 21 December 2019. He claims his sickness made it hard for him to finish the application on time.²⁵ Secondly, Mr Sandhu submits the internet connectivity in certain parts of India is not stable and that he also experienced power outages which made completing research on the internet difficult and caused the delay.

[24] Mr Sandhu provided no evidence to support his submission that he was so unwell that he could not complete his application on time or that he was experiencing technological issues and he did not provide any submissions or material to explain why he waited until the 21^st day to make his application. Although the period of delay that requires explanation is the period commencing immediately after the time for lodging an application expires, it is also important to consider any circumstances from the date the dismissal took effect when assessing whether any explanation for the delay is an acceptable explanation. Mr Sandhu’s employment terminated early with his agreement with two weeks in lieu of notice paid to him, which he otherwise would have worked. His trip to India was arranged some time earlier as he had requested leave and it was authorised while he was still employed.

[25] There is nothing unusual, out of the ordinary or uncommon with applicants raising computer or internet problems for the reason for the delay.²⁶ Further, Mr Sandhu is familiar with the conditions concerning power and internet connectivity in India. I do not consider the reasons given for the delay weigh in Mr Sandhu’s favour.

Steps taken to dispute the termination

[26] Mr Sandhu did not challenge Illion’s acceptance of his resignation until he filed this application on 25 December 2019. He does submit that “the seeds of [his] upcoming unfair dismissal were sown when [the] employer started changing [his] role”²⁷ suggesting that the direction to perform tasks was a fundamental change to his role, and as it offended his level of experience it led to him not having any option but to resign.

[27] Illion became aware that Mr Sandhu was unhappy about the performance improvement process when he sent an email expressing his dissatisfaction sometime after his resignation and this led to the discussion between Mr Sandhu and Illion which resulted in an agreement to alter his last day of work.

[28] This consideration does not weigh in Mr Sandhu’s favour.

Prejudice to the employer

[29] Mr Sandhu asserts that granting an extension of time will not disadvantage the employer because it knew he was dissatisfied with their directions to perform tasks he considered beneath him.

[30] While Illion alleges that the application causes disadvantage or unfairness, it fails to provide further material in support of this allegation. It does state that the allegations made by Mr Sandhu are unfair.

[31] While the employer may not be prejudiced by an extension of time, I do not consider its mere absence as a reason to grant an extension. This consideration is neutral in the circumstances.

Merits of the application

[32] Mr Sandhu submits his employment was terminated by way of his resignation as he had no other option.

[33] Illion submits that Mr Sandhu resigned of his own free will. It also submits that its actions to initiate a performance improvement process was reasonable and referred to his contract, job description and submits that all technical business analysts perform bug triage and release notes,²⁸ which Mr Sandhu argued were junior duties and beneath him.

[34] Mr Sandhu relies on an argument of constructive dismissal. He did not present any evidence of action at the initiative of the employer which would leave him with no option but to resign. There was a dispute between the parties regarding duties which Mr Sandhu characterised as junior, beneath him and not the work of a technical business analyst. He relies on the Seek advertisement and BABOK but fails to consider the wording in his contract of employment²⁹ and his job description. There was no evidence that the actions of the employer intended to bring the contract to an end. In fact, Illion submits that following the warning, Mr Sandhu’s performance improved.

[35] Determining a constructive dismissal, requires an objective analysis of the employer’s conduct. There was no evidence that the duties directed to be performed were such that they were intended to bring the employment relationship to an end.³⁰ Illion submits the performance management process confirmed the expectations of Mr Sandhu’s role and their process delivered in their view a positive outcome. Illion states it was surprised by the resignation following the improvement in Mr Sandhu’s performance.³¹

[36] Mr Sandhu failed to discharge the onus to prove that his resignation was not voluntary. I note he was dissatisfied with the role as he was required to perform duties which he took pains at describing as junior and beneath his experience. The resignation further did not take place in the heat of the moment, it was tendered unprovoked and two weeks after his feedback session where he was provided with both positive and constructive feedback.

[37] While, the merits were not tested, Mr Sandhu did not make a case for constructive dismissal and I do not consider his chances of success to be strong. I do not consider this consideration weighs in his favour for an extension of time.

Fairness between the person and other persons in a like position

[38] In written and oral submissions both the Applicant and Respondent did not respond adequately to this consideration Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[39] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[40] While the application was only minutes late, I have considered the evidence and submissions against each of the factors set out in s.366(2), and I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr N Sandhu for himself

Ms K Kumar for the Respondent

Hearing details:

2020
Melbourne
10 March 2020

Printed by authority of the Commonwealth Government Printer

<PR718082>

1 Applicant’s Outline of Argument at Q1g.

2 Ibid.

3 Ibid.

4 Applicant’s F8 Application Form at Q3.1.

5 Ibid.

6 Applicant’s Oral Submissions at 12.53 minutes.

7 Applicant’s F8 Application Form at Q3.1.

8 Ibid.

9 Ibid.

10 Applicant’s Outline of Argument at Q1e.

11 Applicant’s Oral Submissions at 23.28 minutes.

12 Applicant’s F8 Application Form at Q3.1.

13 Applicant’s Outline of Argument at Q1h.

14 Applicant’s F8 Application Form at Q3.1.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid, Q3.3.

19 Respondent’s Outline of Argument at Q1g.

20 Ibid at Q1h.

21 [2011] FWAFB 975.

22 Ibid at [13].

23 Applicant’s Outline of Argument at Q1d.

24 Ibid.

25 Ibid.

26 See Jewell v Workforce International Group T/A Workforce Road Services [2019] FWC 3824; Dawson v Virgin Australia Airlines Pty Ltd [2017] FWC 3890.

27 Applicant’s Outline of Argument at Q1e.

28 Respondent’s Outline of Argument at attachment First and Final warning.

29 Applicant’s F8 Application at attachments contract of employment, Seek advertisement, warning letter.

30 Mohazab v Dick Smith Electronics (1995), IRCA 645 [49].

31 Respondent’s Outline of Argument at attachment ‘acceptance of resignation’.