Rowan Addison v JP Morgan Administrative Services Australia Limited

[2021] FWC 6374

[2021] FWC 6374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rowan Addison
v
JP Morgan Administrative Services Australia Limited
(C2021/5108)

COMMISSIONER YILMAZ MELBOURNE, 22 NOVEMBER 2021

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

[1] On 26 August 2021, Mr Rowan Addison lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against JP Morgan Administrative Services Australia Limited (JP Morgan). Mr Addison was an Executive Director on the Rates Trading floor, he commenced employment with JP Morgan on 15 April 2013 and was dismissed on 19 July 2021.

[2] At the time of Mr Addison’s dismissal, he submits that he was working remotely in the Southern Highlands, and for the three weeks after the dismissal, he was unable to obtain advice or lodge an application because:

•  He suffered insomnia, was constantly tired and lacked concentration;

•  His mental state affected his ability to consider his dismissal, his legal rights or possible remedies; and

•  The COVID situation in greater Sydney prevented his return and access to his notes.

[3] Mr Addison submits that he returned to Sydney on 9 August 2021 and following contact with his lawyers on 16 August 2021 he provided “a significant amount of background material for review and advice”. He states that before obtaining advice, he was unaware of the 21 day time limit to file a general protection application.

[4] I scheduled the extension of time hearing for 7 October 2021. At the hearing, both parties were granted leave for legal representation.

[5] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 17 days after the 21 day statutory time limit.

Applicant’s submissions

[6] Mr Addison submits that he commenced as a derivatives and bond trader and had a period of some 30 year’s’ experience in the finance industry. In or about in June 2020 he reported to the Respondent’s Compliance Team concerns about a particular client’s communications. While the Compliance Team did not identify any concerns at the time, in September 2020, following an inquiry from ASIC, the Compliance Team did raise concerns and accused Mr Addison of wrongdoing.

[7] Mr Addison further submits that a report following an investigation into his conduct was presented to the Respondent’s Market Conduct Violation Framework Committee to determine whether he had committed any wrongdoing. A finding of a serious policy breach was then referred to the Respondent’s Disciplinary Committee. Mr Addison submits that he did not see the investigation report, nor was he given an opportunity to comment on it. However, he submits that he was given an opportunity to make submissions to the Employee Relations team to mitigate any penalty against him. He says that he did as his managers suggested, that he admit the wrongdoing, show remorse and “throw himself at the mercy of the Disciplinary Committee”. 1

[8] Mr Addison submits the behaviour towards him contravened his workplace rights in terms of:

•  S.340 Protection of Workplace Rights.

[9] The contravention of workplace rights is described by Mr Addison as:

•  The right to make a complaint or inquiry in relation to his employment and his employer’s policies and procedures. The inquiry was made in June 2020 about the client’s communications in May/ June 2020.

•  The adverse action resulted in freezing his 2020 bonus, freezing his vesting stock in December 2020, issuing a breach notice to him in June 2021 and terminating his employment in July 2021.

[10] Mr Addison contends that he had no previous compliance breaches in his eight years’ service or 30 year career, and he denies that his conduct was in breach of his employer’s policies and procedures.

Respondent’s submissions

[11] JP Morgan submit that there are no exceptional reasons for the extension of time, and even if there were, that the Commission should exercise its discretion to refuse the extension.

[12] Mr Addison was dismissed on 19 July 2021 for misconduct after an investigation substantiated that he had breached its policies and procedures. 2 It states that the investigation was not due to his inquiry in June 2020, rather the investigation conducted by it relates to serious compliance and misconduct concerns, and that his breach of its policies and procedures exposed JP Morgan to reputational, regulatory and legal risk.

[13] Following the dismissal, JP Morgan refer to the communications from Mr Addison to HR relating to a statement of service, his final payslip, his private health care rebate and private health insurance statement and state that none of those communications are referred to in Mr Addison’s submissions, and further that the communications were normal actions of an employee that had been terminated. 3

[14] JP Morgan denies that it took into account any unlawful or prohibited reason in disciplining or terminating Mr Addison. It denies that it contravened any general protection provisions of the Act.

Consideration

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

[16] However, s.366(2) of the Act 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.

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

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

The reason for the delay

[19] The general protections involving dismissal application was lodged with the Commission on 26 August 2021, 17 days late.

[20] Mr Addison submits that he suffered severe psychological impact from the dismissal and the circumstances leading to it. In support of his submissions, he tendered his own statement describing his symptoms 6, documents dated 23 August 2021 and 14 September 2021 from his general practitioner7 and a document from his daughter dated 20 August 2021, a USA licensed counsellor working under supervision.8

[21] In addition, Mr Addison submits that from 19 July to 9 August 2021 while he was in the Southern Highlands, he did not have access to his employment records and was concerned to return to Sydney due to COVID-19. However, on his return to Sydney, it took him time to collate his materials to obtain legal advice. He had his first meeting with his solicitors on 17 August 2021.

[22] JP Morgan in referencing the medical evidence note that the first document from Mr Addison’s general practitioner is dated 23 August 2021, 35 days after the dismissal and after he obtained legal advice.

[23] While giving evidence Mr Addison stated that he obtained the medical statement on advice from his legal adviser. The medical documents do not make any reliable statement of Mr Addison’s incapacity to file a general protections application within the statutory 21 day limit or any period prior to 23 August 2021. The medical evidence of both the general practitioner and his daughter, Ms Cooper, indicate that Mr Addison suffered shock, depression, grief and mood changes among other signs. All of these symptoms are not uncommon experiences by someone that has lost their job, and further these experiences can last for some time afterwards. However, the medical evidence does not relate to his mental incapacity to make an application within the required period. There is no medical evidence to explain the delay until at least 23 August 2021, well after the dismissal.

[24] JP Morgan describe the medical evidence from Mr Addison’s general practitioner as retrospective speculative opinion, while it may be the case, it is clear, and it is relevant, that the advice is dated 23 August 2021 and Mr Addison states that the advice was sought after he obtained legal advice. Any statements in the document cannot be relied on for the purpose of assessment of Mr Addison’s delay in filing the application prior to 23 August 2021.

[25] The evidence of Ms Cooper who is a licensed resident counsellor under supervision in the USA, gave evidence and stated that she was conflicted, and it was not appropriate to provide treatment to her father and relying on the same professional principles, it was inappropriate to provide her professional opinion. I have no doubt that Ms Cooper recognised the common signs experienced when one loses their job and clearly, she showed concern. However, the weight of her evidence should be balanced against the absence of any reliable evidence that Mr Addison was mentally incapacitated in actioning his application.

[26] Further, I do note that Mr Addison states that on or around 9 August 2021 he considered making a legal claim against JP Morgan. 9 This statement together with his correspondence to JP Morgan human resources personnel from 19 July to 13 August 2021 about a statement of service, his payslip, his health care benefit and private health insurance statement are important inquiries and indicate that he was not so incapacitated to file a general protection application. The evidence is inconsistent with his submission that the delay was due to the psychological impact of the dismissal.

[27] While the delay after the 21^st day is to be considered, the period prior to the 21^st day is relevant as to whether there are exceptional circumstances. 10 Despite Mr Addison stating that he suffered psychologically from the dismissal, no medical evidence was obtained until late August 2021, and in July to August he competently had made important inquires of JP Morgan. The medical evidence from the general practitioner describes the improvement to Mr Addison’s symptoms and does not explain the further delay until 26 August 2021.

[28] In relation to the submissions that Mr Addison did not have access to his employment records and was fearful of returning to Sydney, while giving evidence he stated that he did have access to the internet. I am not satisfied that he did not have capacity to file a general protection application from the Southern Highlands and without access to all of his employment records. I note that Mr Addison was dismissed on 19 July 2021 while he was working remotely, away from his Sydney residence. The letter of termination was sent to him on the same day, and he had access to the internet and a phone. The application form is a relatively simple form, the absence of the detailed timeline of the circumstances regarding merit would not detract from a competent application within time.

[29] There must be a credible reason for the delay. 11 Having regard to the submissions and evidence, I am not satisfied that Mr Addison demonstrated credible reasons regarding this consideration. I do not consider the reasons given for the delay weigh in his favour.

Steps taken to dispute the termination

[30] It is not in contention that on 19 July 2021, the dismissal took effect. Other than make inquiries of human resources on various matters, Mr Addison contends that he did not dispute his dismissal until 26 August 2021, the same date of the application.

[31] The absence of disputation of the dismissal does not weigh in Mr Addison’s favour.

Prejudice to the employer

[32] Mr Addison submits that granting an extension of time will not cause JP Morgan disadvantage or unfairness.

[33] JP Morgan submit that the delay means that its ability to defend itself is detrimentally affected. I am not satisfied that JP Morgan is prejudiced by the delay. However, despite the absence of prejudice, and consistent with precedent, an absence of prejudice is insufficient reason to grant an extension.

[34] This consideration does not weigh in favour of an extension.

Merits of the application

[35] Mr Addison submits that the merits of the application are strong. He states that the adverse action taken against him stems from his workplace right to make a complaint or inquiry. This inquiry concerns the query he raised in June 2020, relating to the conduct of a client in the trading chat room. Mr Addison describes the extraordinary period of the investigation into his conduct, the lack of information and transparency of process including the lack of disclosure of particulars of the alleged wrongdoing, which all together with the dismissal, caused severe psychological impact.

[36] JP Morgan submit that Mr Addison’s application would have little prospect of success due to it having dismissed him after a robust investigation into compliance concerns. The fact that Mr Addison made an inquiry is not connected to the serious allegations of misconduct against him which exposed JP Morgan to reputational, regulatory and legal risk.

[37] The factual evidence was not tested and it is apparent that the factual detail concerning merit will be strongly contested. In such extension of time matters, it is not appropriate to hear the evidence to test the merit, although the Commission does have discretion to form a view whether the applicant has a sufficient case for consideration in favour of an extension of time. 12

[38] On the evidence before me I cannot conclude that there is no merit, nor can I conclude that Mr Addison has a strong, meritorious application. I have not tested the evidence and it is not my position to do so in an extension of time application. 13

[39] The letter of termination states that JP Morgan has determined that the conduct constituted a “violation of the Communications Policy – Firmwide and the Anti-Fraud, Anti-Manipulation and other Prohibited Trade Practices Policy.” 14 Any contravention of such policies has serious consequences for both Mr Addison and the Respondent. The seriousness of the allegations was not lost on either party, and one would expect in those circumstances that the investigation would be thorough, but also quite stressful. If Mr Addison was disappointed with either the investigation process or consequences, it does not follow that the result is a contravention of general protections. However, Mr Addison submits that the contravention arose because he raised a query or complaint, well before the investigation process commenced. It is submitted that the cause of the investigation is linked to the finding, the loss of job and loss of monetary benefits. JP Morgan deny any link.

[40] Having considered the submissions and evidence tendered, on the balance of probabilities, I nevertheless do not consider that Mr Addison has established that his inquiry led to the adverse action. The allegations concerning Mr Addison’s conduct are serious and the circumstances around the process, on his evidence, caused him stress. I accept that the nature of the allegations and the process itself would have been quite difficult given the nature of the allegations and the possible consequences, but the submissions and evidence tendered by Mr Addison is not sufficient to conclude a meritorious application in favour of an extension. As I make no factual findings, and due to contest of facts, at best, in my view, merit is a neutral consideration.

Fairness between the person and other persons in a like position

[41] Neither party were in a position to identify any other person(s) in a similar position therefore this consideration is irrelevant.

Conclusion

[42] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.

[43] On balance, in terms of all of the considerations in an extension of time application, the circumstances do not weigh in favour of Mr Addison.

[44] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Mr N. Napper for the Applicant

Mr D. Perry and Ms P. Noakes for the Respondent

Hearing details:

2021
Melbourne (by Telephone)
7 October

Printed by authority of the Commonwealth Government Printer

<PR735900>

 1   Applicant’s outline of Submissions at [13] and Exhibit A2, witness statement of R Addison at [17].

 2 Respondent’s submissions in relation to extension of time at [6].

 3   Ibid at [8] – [10].

 4   [2011] FWAFB 975.

 5 Ibid at [13].

 6   Applicant’s witness statement.

 7   RA 1 – Form F8 Annexure A and attachment RA 9 to Applicant’s witness statement.

 8   RA 1 - Form F8 Annexure B, also Attachment CC1 to Exhibit A1 witness statement of Courtney Cooper and transcript recording.

 9 Exhibit A2, witness statement of Mr Rowan Addison at [23].

 10   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

 11 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300; Kyvelos v Champion Socks Pty Ltd, Print T2421 AIRCFB, (10 November 2000) at [14].

 13   Miller v DPV Health Ltd [2019] FWC 3979.

 14   Annexure F to Applicant’s Form F8.