Peter Hughes v National Australia Bank

[2015] FWC 5394

[2015] FWC 5394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Hughes
v
National Australia Bank
(U2015/5764)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 7 AUGUST 2015

Application for relief from unfair dismissal - extension of time - no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.

[1] Mr Peter Hughes (the Applicant) made an application on 5 June 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment on 14 May 2015 by the National Australia Bank (NAB – the Respondent) was harsh, unjust and unreasonable. On 14 July 2015, NAB objected to the application on the grounds that it had been made outside the 21 day timeframe specified in s.394(2) of the Act. The application was lodged one day outside the 21 day statutory timeframe.

[2] On 17 June 2015 a timetable outlining the requirements for the filing of an outline of argument and any evidentiary material to be relied on was sent to the parties. The matter was heard on 24 July 2015.

[3] At the hearing Mr Hughes was self-represented, while Mr Dan Duke, a Senior Consultant - Industrial Relations with NAB, appeared for the Respondent.

[4] For the reasons outlined below, I have found that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application cannot proceed and is therefore dismissed.

Background

[5] Mr Hughes commenced employment with NAB on 8 October 2012 as a Senior Financial Planner based in Ballarat. Mr Hughes had not previously worked as a financial planner. In November 2014 Mr Hughes was rated as “not meeting expectations’ in his annual performance review. Ongoing feedback and review of Mr Hughes’ performance occurred between then and January 2015. In late January 2015 Mr Hughes was advised that his performance was subject to a review as a result of his underperformance. Mr Hughes was also advised at that time that his employment could be terminated subsequent to the review.

[6] From early March 2015 Mr Hughes’ supervisor, Mr Harry Monie, began weekly performance coaching sessions with Mr Hughes as part of the review. On 9 April 2015 Mr Monie met with Mr Hughes to discuss the outcome of the review. Mr Monie informed Mr Hughes that the review had found that Mr Hughes had failed to meet the required performance standards and that termination of his employment may be a result. Mr Monie provided Mr Hughes until 13 April 2015 to respond in writing which Mr Hughes did. After considering Mr Hughes’ response, NAB dismissed him on 17 April 2015 for poor performance. NAB provided Mr Hughes with four weeks’ notice of termination so as to provide him with an opportunity to search for alternative positions. Mr Hughes’ dismissal took effect on 14 May 2015.

[7] As noted above, Mr Hughes filed his application on 5 June 2015, one day outside the 21 day statutory timeframe.

The Relevant Legislation

[8] Section 394 of the Act provides:

“394 Application for Unfair Dismissal Remedy

394(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

394(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).

394(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 first person 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.”

Whether to allow a further period for the application to be made under s.394(2)

[9] In deciding whether to allow a further period for an application to be made the Fair Work Commission (the Commission) must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[10] Mr Hughes submitted that he had completed his application on 4 June 2015 (day 21) and was ready to file it electronically with the Commission but was delayed by a series of relatively minor technical issues which combined to cause a cumulative delay of approximately 60 minutes. Those technical issues primarily related to problems with Mr Hughes’ internet connection. Mr Hughes submitted that he had been having problems with his internet connection for some months and provided copies of a number of faults reported to his internet service provider (ISP). Those faults related almost entirely to faults reported in February 2015, though one report was dated 1 June 2015. Mr Hughes further submitted that on the night of 4 June 2015 his internet dropped out on approximately six or seven times and that as a result it was not until after midnight that he was able to lodge his application.

[11] At the hearing, Mr Hughes conceded that he had contacted the Commission prior to his dismissal taking effect and that he was aware of the 21 day time limit. While Mr Hughes could not recall precisely when he became aware of the 21 day time limit, he thought it was after he was dismissed. Further, Mr Hughes was unable to provide any reason as to why he left it to the last few hours of the 21 day period to lodge his application.

[12] At the hearing NAB submitted that the internet problems relied upon by Mr Hughes as the reason for the delay in lodging his application do not constitute exceptional circumstances, particularly as Mr Hughes had been aware of these internet problems in the days leading up to the expiry of the 21 day period. NAB also highlighted that there were other means by which Mr Hughes could have lodged his application, e.g. by phone.

[13] Based on the material before the Commission it is clear that Mr Hughes was aware of the 21 day timeframe for lodging an unfair dismissal application. It is also clear that Mr Hughes had been experiencing problems with his internet connection for some time. Despite this, Mr Hughes was unable to provide a compelling reason as to why he did not seek to lodge his application prior to the proverbial “five minutes to midnight” given that he acknowledged that his application had been finalised earlier on 4 June 2015. While Mr Hughes did provide some evidence of faults reported to his ISP, none of those reports related to 4 June 2015. In other words, there is no evidence to substantiate Mr Hughes’ claim of internet problems on that day. I also observe that it is not uncommon for internet services to dropout. These factors do not support a finding of exceptional circumstances.

[14] Given the reason for the delay relied upon by Mr Hughes, the Commission has interrogated its e-filing records to see the time of any attempts by Mr Hughes to lodge his application. Those e-filing records indicate that Mr Hughes first logged onto the Commission’s website at 00.01am on 5 June 2015 (i.e. one minute after midnight and one minute outside the 21 day timeframe) and that he submitted his application at 00.17am on that morning. Further, the records do not show any error recording for Mr Hughes’ user profile between 1 June and 3 July 2015. In other words, the records do not show any attempts by Mr Hughes to lodge his application within the 21 day statutory timeframe.

[15] Together, these factors weigh against a finding of the existence of exceptional circumstances.

(b) Whether the first person became aware of the dismissal after it had taken effect

[16] It is not disputed that Mr Hughes became aware on 17 April 2015 that his employment would cease at the expiry of the notice period on 14 May 2015.

[17] In practical terms this means that Mr Hughes effectively had seven weeks within which to prepare/draft and lodge his unfair dismissal application. This does not support a finding of exceptional circumstances warranting the granting of a further period for the making of Mr Hughes’ application.

(c) Any action taken by the person to dispute the dismissal

[18] It is not disputed that on 23 April 2015 Mr Hughes emailed NAB requesting that further consideration be given to its decision to terminate his employment. More particularly, Mr Hughes proposed in that email that he be given a final review period as per NAB’s managing under performance standards and agreed in advance “to jump without needing to be pushed if I don’t meet the agreed standards.” 1A meeting subsequently took place on 1 May 2015 between Mr Hughes and Mr Monie and other NAB representatives. NAB submitted that during that meeting it further reviewed its decision to dismiss Mr Hughes and explained to Mr Hughes that he had been given numerous opportunities to improve his performance but had continually failed to meet expectations. NAB further submitted that Mr Hughes was also advised at that meeting that there had not been enough improvement in his overall performance to warrant a reversal of the decision to dismiss him.

[19] From the above it is clear that Mr Hughes took action to dispute his dismissal prior to it taking effect. This does not point to the existence of exceptional circumstances in this case.

(d) Prejudice to the employer (including prejudice caused by the delay)

[20] At the hearing, Mr Hughes submitted that NAB would not be prejudiced were an extension of time granted. NAB did not dispute that view.

[21] I therefore consider the issue of prejudice to be a neutral consideration.

(e) The merits of the application

[22] In his application Mr Hughes highlighted that he was provided very little support when he commenced with NAB and that he “more than most, needed specific assistance.” Mr Hughes also acknowledged in his application that his performance was slow and did not dispute that his results were poor. Mr Hughes also pointed out in his application that according to all scorecards given to him by Mr Monie at the end of the review he was not meeting any financial targets yet NAB’s Head of Wealth for Victoria and Tasmania sent out an email on 23 April 2015 which showed that Mr Hughes was in the top third of the State for both new revenue and advice fees. Mr Hughes also contended that the review process was deeply flawed and inconsistent with NAB’s own policies.

[23] Mr Hughes reiterated those views in his written submissions. At the hearing Mr Hughes described the review process as a “sham” and disputed the fairness of the performance criteria relied upon throughout the review.

[24] NAB submitted that the application lacked merit, particularly in view of the exhaustive process it had followed in the lead up to Mr Hughes’ dismissal.

[25] Based on the material before the Commission, the merits of Mr Hughes’ application do not appear particularly compelling.

(f) Fairness as between the person and other persons in a similar position

[26] Mr Hughes did not address this factor.

[27] NAB submitted that it would be unfair to other unfair dismissal applicants were Mr Hughes to be granted an extension of time when other applicants who had no or limited reasons to explain the delay in making an application may not be able to obtain such an extension themselves.

[28] I consider this factor to be a neutral consideration.

Conclusion

[29] The question of exceptional circumstances was dealt with by a Full Bench of Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group 2 (Nulty) in the following way:

“[13] In summary, 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.”

[30] Having considered all of the factors set out in s.394(3) of the Act, and drawing on the decision in Nulty, I find that there are no exceptional circumstances warranting the granting of further period for the making of an application for an unfair dismissal remedy. Accordingly, the application cannot proceed and is therefore dismissed. An order to that effect will be issued with this decision.

Appearances:

P. Hughes on his own behalf.

D. Duke for the National Australia Bank.

Hearing details:

Melbourne.

2015:

July 24.

 1   Mr Hughes' Outline of Argument at Attachment 11

 2 (2011) 203 IR 1

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