Neil Radford v QUT
[2021] FWC 5252
•25 AUGUST 2021
| [2021] FWC 5252 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Neil Radford
v
QUT
(U2021/6312)
COMMISSIONER SIMPSON | BRISBANE, 25 AUGUST 2021 |
Application for unfair dismissal remedy – application out of time – whether an extension of time should be granted.
[1] On 19 July 2021, Mr Neil Radford filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging his employment with Queensland University of Technology (the Respondent/QUT) was terminated unfairly.
[2] The matter was allocated to me to determine whether an extension of time should be granted to Mr Radford to file his unfair dismissal application. The matter was listed for Hearing on 19 August 2021 by telephone. Mr Radford appeared on his own behalf, and I granted leave for Mr Jesse Evans of MinterEllison to appear for the Respondent.
BACKGROUND
[3] Mr Radford provided on the Form F2 application that the date his dismissal took effect was 21 January 2021. Part 1.4 of the application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Radford answered “No”. Mr Radford’s explanation for why the application was lodged out of time was as follows:
“It has since come to light that other colleagues within the same department have also been put through the same performance related terminations during probationary period. We are all highly experienced and highly graded with no prior issues. It was evidently a cost cutting exercise and one which has ruined professional integrity and reputations. I have taken it very personally which has caused much distress mentally and physically. I am now reassured to hear that I have not been the only one to go through this and that I do not need to question my own ability after 20 successful years in the sector.”
[original text kept]
[4] On 2 August 2021, the chambers of Vice President Catanzariti sent email correspondence to Mr Radford advising that his application appeared to be 158 days out of time and invited the Applicant to provide a response to this by 5 August 2021.
[5] On 5 August 2021, Mr Radford sent email correspondence to the chambers of Vice President Catanzariti.
Applicant’s Submissions
[6] The Applicant submitted that six and a half months after commencement with QUT, he attended a standard performance review meeting with his line manager Mr Andrew Leech on 31st August 2020. Mr Radford submitted the outcome of this was positive and no performance issues were raised at this point. Mr Radford said he completed the required sections of the review document and that Mr Leech clearly stated he was happy with his performance to date and no concerns whatsoever were discussed.
[7] Mr Radford submitted that on 23September 2020 he was requested to attend an unsatisfactory performance meeting with Mr Leech and Human Resources. Mr Radford said there was no reference made to the prior performance review in this meeting and that he was immediately presented with a performance improvement plan detailing a whole host of performance issues and concerns.
[8] Mr Radford submitted this came as huge shock and the discussion was centred around exaggerated examples of sub-standard performance which were not a true reflection of facts. Mr Radford said he attempted to counter all the accusations but was not listened to. Mr Radford said he also raised the question as to why there was no mention of his performance review a couple of weeks prior, and that he no visibility of any performance related concerns up to this point.
[9] Mr Radford said he questioned if the process he was being subjected to was aligned to the enterprise agreement with regards to probationary period terms and was told it was.
[10] Mr Radford said he was then subjected to several meeting with Mr Leech and Human Resources in which they continued to raise further performance issues each time and the list of grievances kept growing. Mr Radford submitted he attempted to counter and give reasonable feedback which was disregarded. He said throughout the whole process he felt intimidated and targeted. Mr Radford said major projects were taken off him when he was receiving excellent feedback from senior researchers and collaborators involved in the project.
[11] Mr Radford said he received little guidance and support and that no matter what he did, his work was never satisfactory. Mr Radford said he was pulled up for minor email typos when others were guilty of this too and was presented with deliberate ambiguous tasks requests.
[12] Mr Radford said there was a meeting with Human Resources in January 2021 just a few weeks short of the full probation period and he was advised of formal termination due to performance issues. Mr Radford said during this meeting further performance related accusations were raised which he subsequently tried to counter. Mr Radford said his point of view and explanations during the meeting were totally disregarded. Mr Radford said several days later, he received an emailed “scathing” termination letter.
[13] Mr Radford said since the termination, he has greatly suffered mentally and physically by the experience and has never before been subjected to any questioning of his expertise in this sector. Mr Radford said he has worked at top universities throughout his career receiving letters of commendation and outstanding performance accolades.
[14] Mr Radford said to date he has been unable to secure employment and submitted the manner in which the Respondent terminated him has ruined his reputation and credibility in the space he has been employed over 20 years. Mr Radford said this stress has brought about serious health issues and he has suffered a heart attack followed by surgery.
[15] Mr Radford said it has now recently become known to him by ex-colleagues that he was not the only one in the team at that time subjected to an unsatisfactory performance process. Mr Radford said similarly, these co-workers were within their probationary periods and equally highly experienced and high pay graded.
[16] Mr Radford said his application has been lodged at this point in time as these colleagues have recently notified him that they were put through the same experience and treatment at the same point in time. Mr Radford submitted this is all evidence of a cost cutting exercise. He submitted permanent long serviced staff with less experience and lower grades have now been placed in some of these roles.
[17] Mr Radford submitted that with this knowledge and insight, he now knew that he was being set up to fail and the whole objective of the performance process was manufactured to end his employment.
[18] During the Hearing submissions were put for Mr Radford that at the time the dismissal occurred, it was a shock and hard for him to process. It was submitted that Mr Radford was not in a good state of mind at the time, and he was taken aback by the process, and he was not in the right frame of mind to deal with it.
Respondent’s Submissions
[19] On 9 August 2021, the Respondent lodged a Form F3 – Employer response to the unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act. The Respondent submitted there are no exceptional circumstances that would justify the Commission allowing a further period for the Applicant to make the Application.
[20] The Respondent submitted that the correspondence dated 5 August 2021 from the Applicant included submissions about his perspective of the merits of his case, including why he believes his termination was unfair, however that the Applicant has not specifically responded to those considerations that the Commission must have regard to in determining exceptional circumstances in accordance with s394(3) of the FW Act, other than that he has become aware of other colleagues’ circumstances since the cessation of his employment.
[21] The Respondent submitted that while it will not comment on the circumstances of other staff, it denies the Applicant’s assertions in relation to his and others' terminations. In particular, the Respondent strongly denies the Applicant's suggestion that the Respondent is using performance management to cut costs.
[22] The Respondent submitted even if there was validity in Mr Radford’s perception that there are other staff members who have had similar experiences, that would be irrelevant to the issue of the fairness or otherwise of the Applicant's dismissal and the fact that the Mr Radford only developed this perception at a later time (after the expiry of the limitation period) would not be an exceptional circumstance.
[23] The Respondent submitted that Mr Radford has not stated in his submissions the time at which he developed this perception. The Respondent submitted this is of importance to whether there was any further unjustifiable delay from the time Mr Radford became aware of these circumstances. 1
[24] Mr Radford said during his oral evidence that he spoke to his colleagues sometime in July, which is when he realised that he could bring an unfair dismissal application.
[25] The Respondent submitted during the Hearing that an ignorance of the ability to bring an unfair dismissal application is not an exceptional circumstance. The Respondent submitted the Applicant has not provided a satisfactory reason for a delay.
[26] The Respondent further submitted that while it was sympathetic to Mr Radford’s state of mind following the dismissal, it is not out of the ordinary for employees to feel stressed after performance management and this does not amount to exceptional circumstances.
[27] The Respondent submitted Mr Radford’s employment was terminated by the Respondent during the probationary period, in accordance with the detailed process set out in clause 52.2 of the Queensland University of Technology Enterprise Agreement (Professional Staff) 2018-2021 (Probation process).
[28] The Respondent submitted that following the identification of performance concerns by the Applicant’s supervisor and as part of the Probation process, a performance improvement plan (PIP) was initiated and was in place between 23 September 2020 and 25 November 2020. During the term of the PIP the Applicant, the Supervisor and a representative from Human Resources met fortnightly to discuss the Applicant’s performance.
[29] The Respondent submitted at the end of the PIP, the Supervisor made a recommendation to the Executive Director, Human Resources, that the Applicant’s employment be terminated during his probationary period on the basis that the Applicant had not demonstrated the skills required in the position.
[30] The Respondent submitted that following receipt of the Recommendation the Executive Director Human Resources invited the Applicant to respond to the Recommendation, which the Applicant did by correspondence dated 11 January 2021.
[31] The Respondent submitted that the Executive Director Human Resources met separately with the Applicant and the Supervisor to hear their respective cases in relation to the Recommendation.
[32] The Respondent submitted taking into account the matters raised in the Recommendation, the Applicant’s Response and the meetings with the Applicant and the Supervisor, the Executive Director Human Resources determined to accept the Recommendation and the Applicant’s employment was terminated effective 21 January 2021.
[33] The Respondent submitted therefore that it is Respondent’s submission that the Applicant’s case is without merit.
[34] During the Hearing the Applicant submitted he believed the Enterprise Agreement provided that the employees on a probationary period should not be subject to a Performance Improvement Plan. Mr Radford elaborated on his written submissions in relation to the process of his dismissal being unfair and said that it was his view his case would be strong should an extension be granted.
[35] The Respondent submitted there were separate provisions in relation to probation in the Enterprise Agreement. The Respondent submitted Clause 52.2 of the Agreement was the mechanism for managing Mr Radford’s performance.
[36] The Respondent submitted the Applicant was notified of this decision during a meeting of 21 January 2021 and by correspondence of the same date. Mr Radford accepted he was notified of his dismissal on 21 January during his oral evidence.
[37] The Respondent submitted since the date of termination, no correspondence has been received from the Applicant, or steps taken by the Applicant to dispute the decision.
[38] Mr Radford said he could not recall taking any steps to dispute the dismissal between 21 January and 19 July.
[39] The Respondent submitted that to allow the application to proceed, despite the length of time which has passed, gives rise to a general presumption of prejudice to the Respondent and would result in an unfair disadvantage to the Respondent and any of its representatives/witnesses. It was submitted the prejudice to the Respondent also includes having to defend the application and incur additional legal costs as well as the delay to the conclusion of the matter. The Respondent will suffer this prejudice in circumstances where the Application was otherwise lodged out of time and, as the Respondent submitted, the application lacks merit.
[40] Further, the Respondent submitted that the circumstances of another staff member would only be relevant if it could be established that other staff members in a similar situation were treated more leniently or beneficially. To the contrary, the Applicant's contention (which is itself denied by the Respondent) is that other staff may also have treated unfairly. The Respondent submitted that would be irrelevant to the disposition of the application. In any event, the Respondent’s position was that all probationary reviews are dealt with on their own merits, and therefore there is no analogous circumstance relevant to this consideration.
LEGISLATION
[41] Section 394 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).
(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.”
CONSIDERATION
Reason for the delay
[42] Mr Radford’s submissions in relation to the reason for the delay included that he was not in the right frame of mind at the time of his dismissal to dispute the dismissal, and that he was not aware he was able to bring an unfair dismissal application until speaking to his colleagues and finding out about their similar experiences in being performance managed by the Respondent.
[43] Whilst Mr Radford did not provide any independent medical evidence, he did give evidence that he had suffered a heart attack and had undergone surgery in the period following his termination. Mr Radford did not however appear to rely on this as the primary basis for explaining the over five-month delay in filing, appearing to rely more on a general claim about his mental and physical state, and his not being aware of his entitlement to bring the application.
[44] Whilst I appreciate it must have been a difficult time for the Applicant during the performance management process and after his subsequent dismissal, including having suffered poor health, I am inclined to accept the Respondent’s submission that the evidence as it is concerning the reason for delay of over five months does not amount to an exceptional circumstance.
[45] In relation to the fact Mr Radford was not aware of the circumstances involving other employees until July 2021, I also accept the Respondent’s submission that this is not an exceptional circumstance. Further, ignorance of the 21-day timeframe is also not an exceptional circumstance. 2
[46] The last day that Mr Radford could have filed his application within time was 11 February 2021. Mr Radford was not able to provide any specific evidence as to why the reasons he relied on throughout the period from 11 February 2021 to 19 July 2021 prevented him from being able to lodge an application within the required 21-day timeframe.
[47] The Applicant has not provided the Commission with a sufficient reason for delay of over five months and I therefore find this goes against granting an extension of time.
First notified of dismissal
[48] There is no dispute Mr Radford became aware of his dismissal on 21 January 2021. This goes against granting an extension of time.
Steps taken to dispute the dismissal
[49] The Applicant accepted that he did not take any steps to dispute the dismissal until he filed his application on 19 July 2021. This goes against extending time.
Prejudice to the employer
[50] 158 days is a significant amount of time and I am of the view that the Respondent would suffer some prejudice if the matter were to proceed. This goes against extending time.
Merits
[51] There appear to be disputed facts in relation to the merits of the application, and without hearing evidence on these points I will consider this to be a neutral consideration.
Fairness between the person and other persons in a similar position
[52] Mr Radford has not provided specific evidence to demonstrate that other staff members in a similar position had been treated more favourably. His submission was that other employees had been treated in the same way he was. For this reason, I find this a neutral consideration.
CONCLUSION
[53] Having weighed each of the matters required to be taken into account in order to determine whether there are exceptional circumstances justifying an extension of time, I am not satisfied there are exceptional circumstances in this case and on that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr N. Radford appearing on his own behalf.
Mr J. Evans of MinterEllison appearing for the Respondent.
Hearing details:
2021,
Brisbane:
August 19
Printed by authority of the Commonwealth Government Printer
<PR733166>
1 The Respondent referred to Muhammad Qureshi v KiwiMployment Pty Ltd T/A KM Corporate Security[2019] FWC 4991 and Tyson Griffiths v GaP Solutions Pty Ltd[2020] FWC 469.
2 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].
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