Paul McArdle v Willis Australia Group Services Pty Ltd

[2019] FWC 6191

[2019] FWC 6191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Paul McArdle
v
Willis Australia Group Services Pty Ltd
(C2019/2458)

COMMISSIONER YILMAZ MELBOURNE, 9 SEPTEMBER 2019

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

Introduction and Background

[1] On 12 April 2019, Mr Paul McArdle (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant was employed by Willis Australia Group Services Pty Ltd (the Respondent) on 29 October 2018 in the position of Claims Leader – New South Wales.

[2] On 7 March 2019, the Applicant was given two weeks’ notice of termination of employment, with notice concluding on 21 March 2019. The Applicant was not expected to work out the notice period. The Applicant’s termination occurred during his six-month period of probation.

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

[4] The Applicant submits his application was made within the 21-day limit. However, 21 days from the date the dismissal took effect ended at midnight on 11 April 2019. The Applicant filed his application on 12 April 2019, the 22nd day since the termination of employment. The application was therefore lodged one day late.

[5] The Respondent corrected the legal entity as named in the Applicant’s Form F8 from Willis Tower Watson, to Willis Australia Group Services Pty Ltd.

[6] On 8 July 2019, the Respondent’s representative made an application for permission to be legally represented pursuant to s.596 of the Act. The Applicant filed written submissions objecting to the Respondent’s application on the basis that the jurisdictional issue is not sufficiently complex so as to warrant legal representation; that it would not be unfair to allow the Respondent to be represented as the Respondent’s lawyers had already filed written submissions on their behalf and that it would be unfair to allow representation as the Applicant himself is not represented and would be at a disadvantage. On 10 July 2019, I determined to grant the Respondent permission to be legal represented at the hearing. While the concerns of the Applicant were noted, I considered it appropriate to exercise my discretion to grant the Respondent to be legal represented on the basis that it would enable the matter to be dealt with more efficiently and that the criterion in s.596(2)(a) of the Act had been met.

Applicant’s submissions

[7] The Applicant submits he has worked in the insurance industry since 2007 and he accepted the position with the Respondent, even though he had not worked in the specific area of claims. He acknowledged it was a new area for him, and although as it was a new position, he was prepared to accept the challenge of the role.

[8] During the period of probation, the Applicant submits that he was subject to bullying and harassment due to his sexual orientation. He claims to not have had any support from his direct manager and alleges that after he revealed his sexuality to a co-worker that this led to his subsequent termination of employment. The Applicant submits the person he disclosed his sexuality to (the Construction Team Leader) had taken an immediate dislike to him.

[9] The Applicant submits that the reason given for the dismissal was that he was not the right fit for the role. The Applicant takes this to mean that he is not the right fit because of his sexual orientation or alternatively, because he challenged the lack of support from his manager and other members of the Respondent. The Applicant submitted with his application the meeting minutes of the termination of employment meeting which was produced by the Respondent. In addition, the letter of termination dated 7 March 2019 was submitted by the Applicant together with his outline of arguments.

[10] The letter of termination confirms the period of probation will end on 29 April 2019 and does not specify the reason for the termination other than referring to the purpose of the probationary period. The letter of termination of employment states:

“The purpose of the probationary period is to enable Willis Towers Watson to evaluate your performance against the requirements of the position and for you to assess your satisfaction with the position.

We confirm that, further to discussions between yourself, Mike Baker and Katherine Simmonds over the past few months we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on 21 March 2018.” 1

[11] The Applicant submits he was not aware that the meeting held on 7 March was to be a meeting to terminate his employment and he submits he was not offered a support person for the meeting.

[12] The Applicant submits the termination of employment is in breach of ss. 340 and 351 of the Act.

[13] In his application, the Applicant contends that the contraventions of the Act by the Respondent relate to:

•  s.340 on the basis that he complained to the Strategy Implementation Leader about the Construction Team Leader. This led to the Strategy Team Leader meeting with his manager, the NSW General Manager about the strategy being implemented.

•  s.351 Discrimination on the basis that he was advised that he was not the right fit for the role. As he was not formally performance managed, he assumes the reason is because of his sexual orientation.

Respondent’s submissions

[14] The Respondent contends that the Applicant was dismissed from his employment during a period of probation. As the Applicant already had approved annual leave of two weeks, his employment was terminated on 7 March 2019 with two weeks’ notice. The Respondent submits even after the Applicant returned to Sydney after his holidays, he took 18 days to file his application. The Respondents asserts the reasons for delay in filing the application do not meet the test of exceptional circumstances.

[15] The Respondent submits the Applicant’s employment was terminated because he did not perform to the level required for the role. The Applicant’s role was a senior role. The Head of P&C (the Applicant’s go to person) identified for the Applicant the key focus areas of his role: clients, strong leadership skills with internal stakeholders, support the business units with the priority being construction, recruitment of a claims advisor with technical expertise and technical support to internal bidding teams to secure business. These priorities were identified by the Head of P&C on the instruction of the General Manager of NSW to assist the Applicant. The Applicant did not accept that this information was related to management of his performance.

[16] The Respondent also submits the Applicant was subject to an annual performance review and received both formal and informal feedback. It was submitted that the Respondent had concerns regarding the Applicant’s “performance and that he did not have the right skills to deliver the objectives and outcomes that were required of the role” 2. Despite the performance feedback, the Respondent submits the Applicant did not improve and he was then dismissed during the probationary period.

[17] The Respondent further submits that the application is without merit. The Respondent has “no record of the Applicant making any informal or formal grievance or complaint of bullying and harassment against other staff members during his employment” 3. The Respondent raises concern that the Applicant at no time during his employment lodged any formal complaint regarding bullying, harassment or discrimination in light of the internal grievance resolution policy that the Applicant was aware of.

Consideration

[18] On 12 July 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

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

[20] 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

[21] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd  4 (Nulty) 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.” 5

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

The reason for the delay

[23] The Applicant submits that he was travelling overseas from 9 to 25 March 2019, although in his Form F8 Application he states he returned on 1 April 2019. The Applicant claims that on returning to Sydney he commenced “collating information and evidence to enable him to lodge an accurate Form F8 Application on 12 April 2019” 6. The Applicant also contends that he is self-represented, therefore the application took longer than had he been legally represented.

[24] During the hearing, the Applicant submitted that he waited until the last day to file his application 7 and experienced computer problems with no connection to the internet which prevented him from lodging the application on time. In his outline of argument, the Applicant submits that he intended on lodging the application on 12 April 2019,8 however in his Form F8 application, he states he intended on lodging the application on 11 April 2019.9

[25] The Applicant’s submissions indicate he was aware of the 21-day statutory timeframe. There is nothing unusual, out of the ordinary or uncommon with applicants representing themselves at the Commission, nor that a self-represented individual would require time to collate the relevant information and evidence required to support their application. Further, the reason relating to computer problems is not an uncommon occurrence.

[26] The relevant period to consider in respect to the delay is the period subsequent to the expiration of 21 days, however, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 10

[27] Having considered the evidence before me, I am not satisfied that the Applicant has made out an acceptable explanation of the reason for the delay. The evidence in this case is clear that the Applicant only attempted to lodge the application on the day he believed the application was required to be lodged. I do not consider the reasons given for the delay weigh in the Applicant’s favour.

Steps taken to dispute the termination

[28] The Applicant submits that he sent an email on 9 March 2019 to Mr Simon Weaver, Leader of Corporate Risk and Broking – Asia and Australia, stating that he was unhappy with the way the termination had taken effect. The Applicant claims he never received a response to this email.

[29] The Respondent submits that the Applicant raised with HR that he noticed alleged “inaccuracies” 11 with the minutes of the meeting on 7 March 2019. However, it was submitted that the Applicant had advised he would address those issues on his return from his overseas trip. The Respondent was aware of the email sent to Simon Weaver, Leader of Corporate Risk and Broking – Asia and Australia. However, the Respondent submits that this email made no reference to an allegation that he was dismissed because of his sexual orientation or because of alleged bullying and harassment.

[30] The Respondent submits that the application was the first occasion in which it became aware that the Applicant alleged an adverse action and an alleged contravention of the Act.

[31] The deficiency in action by the Applicant to take steps to challenge his termination or any alleged bullying or harassment treatment weighs against the Applicant.

Prejudice to the employer

[32] The Applicant asserts that granting an extension of time will not disadvantage the employer. Further, the Applicant alleges that the employer was on notice that he intended to challenge his termination of employment. The Applicant submits that on 9 March 2019 he sent an email to Mr Simon Weaver, stating that he is unhappy with the termination. The letter refers to occurrences that he says amount to bullying and suggests there is a cultural issue in the New South Wales office. In his letter he confirmed that he intends to obtain legal advice on return from his trip overseas.

[33] The Applicant did not provide any explanation why this letter was sent to the Leader of Corporate Risk and Broking, rather than to his manager who was the General Manager of the New South Wales office or alternatively to the HR Business Partner for New South Wales and Queensland.

[34] The Applicant further states that the employer was aware that he was going overseas until 25 March, therefore he submits that it would have been reasonable for the Respondent to expect a notification of dispute after 25 March 2019.

[35] The Respondent, citing Brodie-Hanns v MTV Publishing Ltd  12 submits that the mere absence of prejudice is an insufficient basis to grant an extension of time.13

[36] 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.

Merits of the application

[37] The Applicant submits the reason for the termination is because he disclosed his sexual orientation to a co-worker and that he was subsequently bullied, harassed and terminated. The Applicant failed to provide supportive evidence.

[38] The Applicant denies the meetings with his senior staff, including his supervisor (who he refers to as his go to person) related to performance. He also submits that the email from his supervisor recommending he prioritise five key areas was not related to performance.

[39] The Respondent submits the Applicant was employed as a senior manager; therefore, performance discussions were high level. The Respondent states the Applicant did not demonstrate the outcome required of the role. It also disputes that the Applicant was bullied, harassed or terminated because of his sexual orientation. The Respondent refers to discussions regarding performance and the failure of the Applicant to demonstrate the skills for the role. The Respondent submits it exercised its right to terminate the employment of the Applicant during his probationary period of employment.

[40] The Applicant disregarded the advice from his supervisor to focus on five key areas, and he did not cooperate with the Construction Team Leader to achieve outcomes in the construction business. The Applicant favoured taking instruction from the Strategy Implementation Team Leader. The argument that the Applicant was bullied, harassed and ultimately terminated because of his sexual orientation was not substantiated, rather the evidence submitted by the Applicant mainly related to the inability of the Applicant to build relations with internal stakeholders and solve the pressing business demands faced by the construction team.

[41] While, the merits were not tested, the Applicant nevertheless did not make out a strong argument for this consideration.

Fairness between the person and other persons in a like position

[42] 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

[43] 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.

[44] Having considered all the evidence and submissions against each of the factors set out in s.366(2), 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. An order to this effect will be published separately.

COMMISSIONER

Appearances:

Mr P McArdle on his own behalf.

Ms M Xu for the Respondent

Hearing details:

2019

Melbourne, Brisbane

12 July 2019 (video hearing)

Printed by authority of the Commonwealth Government Printer

<PR712046>

 1   Applicant’s outline of argument at Annexure A.

 2 Respondent’s outline of Argument at [3].

 3 Ibid at [19].

 4   [2011] FWAFB 975.

 5   Ibid.

 6   Applicant’s outline of argument at Q1f.

 7   Applicant’s oral submissions.

 8   Applicant’s outline of argument at Q1f.

 9   Applicant’s Form F8 at Q1.4.

 10   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].

 11   Respondent’s outline of argument at [12.a.].

 12 (1995) 67 IR 298 at [300].

 13 Ibid at [15].