Ngoc Tran v X-RD Pty Ltd
[2023] FWC 2187
•31 AUGUST 2023
| [2023] FWC 2187 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ngoc Tran
v
X-RD PTY LTD
(C2023/4315)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 31 AUGUST 2023 |
Application to deal with contraventions involving dismissal - application filed outside 21-day period - exceptional circumstances not found – application dismissed.
Introduction
Ms Tran (the Applicant) has made an application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal. She contends that she was dismissed by X-RD Pty Ltd (the Respondent) in contravention of sections 340, 342 and 345 of the Act.[1]
Section 366 of the Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
Ms Tran’s application was made on 20 July 2023 and her application form states that the dismissal took effect on 11 July 2022. The application was therefore filed 374 days after the dismissal took effect and 353 days beyond the 21-day time limit.
This decision deals with the question of whether exceptional circumstances exist warranting an additional period of time to make the application.
The issue was dealt with at a hearing on 30 August 2023, at which the Applicant gave evidence in support of her application. A witness statement of Mr Vogel, who was not required for cross-examination, was also submitted.
Factual context
The Applicant commenced employment with the Respondent as a (Junior) Applied Artificial Intelligence and Machine Learning (Data) Scientist on 17 January 2022. The employment was subject to a written contract, including a 3-month probation period. The probation period was extended by the Respondent for a further 3-month period, apparently without the Applicant’s agreement.
The Applicant was given written notice on 4 July 2022 that her employment was being terminated, effective 11 July 2022. The Applicant was dismissed for not meeting performance expectations.
Mr Vogel, who shared a house with the Applicant, gave evidence that he observed a change in the Applicant around May-June 2022 and became increasingly concerned about her as she seemed to be depressed.[2]
In July 2022 the Applicant applied for and accepted an offer of employment with another company, ‘blackbook.ai’, where she worked between August 2022 and January 2023.
In January 2023 the Applicant emailed Mr Tim Hill, one of her former managers at the Respondent, asking if he would provide a reference for her, as she needed to apply for work again because her employment at ‘blackbook.ai’ had ended.
The Applicant had also made two earlier section 365 applications in substantially similar terms as the present Application. The first was made on 7 June 2023 (C2023/3284) and withdrawn on 9 June 2023. The second was made on 10 June 2023 (C2023/3372) and was discontinued on 13 July 2023. The Applicant did not proceed with these applications because of concerns about the impact on her health.
Ms Suringa, a psychologist at VCPS, provided a letter dated 7 August 2023 stating that “Anh consulted with [me] on the 11/7/2023 and presented with low mood.”[3]
Extension of time
Additional time can be allowed under section 366(2) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[4]
The requirement that there be exceptional circumstances before the time to apply can be extended, is a high hurdle.[5]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· the reason for the delay;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
In assessing whether there are exceptional circumstances, I am required to consider and give appropriate weight to each of these considerations.
Exceptional circumstances may 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 can be considered exceptional.[6]
Relevant factors
Reason for delay:
The Act does not specify what reason for delay might justify granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[7]
The Applicant advances the following reasons for delay:
“• I was advised it is not a good idea to make a complaint with fwc.
· I had suicidal thoughts and wanted to protect my health.
· I made a conscious decision to not log a complaint to avoid health issues and protect my career reputation.
· I am afraid of the establishment.
· I have worked for blackbook.ai from august to January and is actively applying for work.
· My psychologists do not know I was suicidal, because I think I would cause higher responsibility for them, and they would be less incline to take me as a patient, as what kind of alarm health system they would set up.”[8]
In relation to the Applicant’s explanation that she had suicidal thoughts and wanted to protect her health, the Applicant produced a very short statement of a psychologist referring to a consultation on 11 July 2023, in which she presented with ‘low mood’. This evidence is insufficient to explain the very long delay in making the application. The Applicant’s evidence is that she did not tell her psychologists of her suicidal ideations as set out above. The consequence of that is there is no evidence before the Commission that establishes that the Applicant was rendered wholly or partially incapable of making an application at an earlier date by reason of her health. Conversely, there is evidence that she was capable of functioning for periods of time. For example, in July 2022 the Applicant applied for and successfully obtained a new job and was able to work between August 2022 and January 2023.
In relation to the Applicant’s concerns regarding the potential impact of making an application on her career and reputation, whilst I accept they were genuinely felt by her, I am not satisfied that this is either out of the ordinary or uncommon. Many employees experience concern and apprehension about commencing legal action against their former employer, especially involving senior and professional roles in such industries as in the Applicant’s circumstances. Similarly, the Applicant’s fears of the ‘establishment,’ do not explain the delay of more than a year in making the application.
In evidence, the Applicant acknowledged that the delay in making the application was contributed to by her subsequent experience, described in her email to Mr Hill in January 2023, that she was finding it difficult to find work after her employment at blackbook.ai ended because prospective employers asked why there were short periods of employment from two companies in a row.
Taking into account all the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application. This weighs heavily against finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal:
In relation to this consideration, the Applicant pointed to her speaking to a friend of Mr Vogel, ‘Dana’, who advised her against making an application. The Applicant, in taking that person’s advice, elected not to take any other action to dispute the dismissal. I have treated this as a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay):
The Respondent submits that the delay in bringing the application has caused it to suffer prejudice because of the long period of the delay and that at least two employees referred to by the Applicant as involved in the circumstances leading to her dismissal, ceased employment with the Respondent some time ago. One of the employees is believed to no longer reside in Australia and their whereabouts is unknown. As a result, the Respondent claims it has suffered prejudice by the late making of the application.
The Applicant submits that the Respondent’s claims as to prejudice should be dismissed because it has not objected to the Applicant’s factual claims but makes no other submission as to this consideration.
However, the Applicant’s submission does not address the Respondent’s claims of prejudice caused by the delay and ignores the Respondent’s denial of the alleged contraventions.
I am satisfied that the very long delay in making the application will cause real and significant prejudice to the Respondent and weighs against a finding of exceptional circumstances.
Merits of the application:
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances. A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.
The purpose of the consideration here is to make a general assessment, and it is done in the context of uncontested and untested allegations, and it is not possible to make any final and substantive determinations.
The Applicant’s substantive claims, as she explained them in her oral evidence, was that she suffered adverse action in the form of the Respondent failing to pay her the notice required under section 117 of the Act and unreasonable performance expectations and assessment, after making complaints about her manager in contravention of section 340 and section 342 of the Act. Further, the Applicant submits that the Respondent made representations contravening section 345 of the Act, namely false representations that the Applicant was underperforming.
It appears to me that the Applicant does not have a strong case. In relation to section 345 of the Act, the representations the Applicant referred to concerning her performance, are not representations about workplace rights, nor their exercise. Whilst I cannot conclude given the reverse onus that applies, that the alleged contraventions of section 340 of the Act are entirely without foundation (noting that s.341 and s.342 that the Applicant referred to relate to and explain the protection provided by s.340 of the Act), the claims do not appear to be strong.
In the circumstances, I consider that the merits of the case is a neutral consideration.
Fairness as between the person and other persons in a similar position:
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how other cases involving similar circumstances were treated to ensure there is fairness in the treatment of Ms Tran’s claim. However, cases will generally turn on their own facts.
I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Tran and other persons in a similar position.
Ms Tran submitted in relation to this consideration, that she was heavily abused and falsely told she was underperforming which jeopardised her health. However, no comparison with other persons was suggested, and I have treated this as a neutral consideration.
Conclusion
Having considered the matters I am required to take into account, both individually and collectively, I am not satisfied there are exceptional circumstances. The very long period of delay without a reasonable explanation weighs heavily against a finding of exceptional circumstances and there are no countervailing considerations weighing in favour of such a finding. As a result, no additional time can be allowed for Ms Tran to make her application.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
The Applicant appearing on her own behalf.
Mr G. Worner appearing on behalf of the Respondent.
Hearing details:
2023
August 31, 23
Video Hearing
[1] The Application alleged contraventions of section 349 and not section 345 of the Act, however the Applicant clarified this in her oral evidence at the hearing.
[2] Digital Hearing Book (DHB) p.89.
[3] DHB p.88.
[4] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[5] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[6] Ibid.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[8] DHB, p.53.
Printed by authority of the Commonwealth Government Printer
<PR765709>
0
0
0