Shaw v Australia and New Zealand Banking Group Limited

[2014] FWC 3903

[2014] FWC 3903 [Note: An appeal pursuant to s.604 (C2014/5232) was lodged against this decision - refer to Full Bench decision dated 15 January 2015 [[2015] FWCFB 287] for result of appeal.]

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.365—General protections

Mitchell Shaw
v
Australia and New Zealand Banking Group Limited T/A ANZ Bank
(C2014/4350)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 17 JUNE 2014

Application to deal with contraventions involving dismissal; application made outside of the time prescribed in s. 366(1)(a); consideration whether to permit a further period within which application should be made; applicant miscalculated date on which application could be made; applicant waited until the last date, which day was beyond the date prescribed by reason of his miscalculation; applicant alleges miscalculation brought about by depressive illness and related conditions; no evidence that these conditions impaired applicant’s capacity to make application earlier than the date lodged; reason for delay primarily related to decision to wait until the final day; that day was wrongly calculated; not satisfied that explanation is an acceptable explanation; not satisfied that there are exceptional circumstances; further period to make application not allowed; application dismissed

[1] This is an edited version of a decision delivered in transcript on 12 June 2014. Mitchell Shaw began employment with Australia and New Zealand Banking Group (ANZ) on or about 31 August 2010. By a letter dated 11 April 2014, ANZ advised Mr Shaw that his employment with ANZ was to be terminated with effect from that day. According to the letter of termination, Mr Shaw's employment was not summarily terminated and it is said that he was paid five weeks' pay in lieu of notice. Whether that is correct is not a matter which needs to be presently determined.

[2] On 5 May 2014, Mr Shaw lodged with the Commission an application under s. 365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute concerning an allegation that Mr Shaw's dismissal occurred in contravention of the general protections provisions in Part 3-1 of the Act. Mr Shaw's application was made outside of the time within which such an application may be made and so Mr Shaw now seeks to be allowed a further period within which to make his application.

[3] The application about which this decision is concerned has been made in the context of some history between Mr Shaw and the ANZ, which warrants some recounting. Prior to his dismissal, Mr Shaw had been concerned for some time that he was the object of bullying behaviour at work. This concern resulted in Mr Shaw making an application under section 789FC of the Act for an order to stop bullying. Prior to Mr Shaw's dismissal, ANZ had been investigating complaints that had been made by other employees of the ANZ about conduct and behaviour said to have been engaged in by Mr Shaw.

[4] ANZ endeavoured to deal with these complaints by attempting to arrange meetings with Mr Shaw, at which time Mr Shaw was to be given an opportunity to respond to the allegations. For a variety of reasons, which are not materially relevant for present purposes, ANZ had not been able to meet with Mr Shaw prior to his dismissal. The allegations that had been made against Mr Shaw were ultimately set out in writing by ANZ in a letter, dated 7 March 2014. Mr Shaw was given an opportunity to respond; an opportunity which he took up in a written response, dated 24 March 2014.

[5] ANZ says that on the basis of interviews with several employees, some of whom had complained about Mr Shaw's conduct and behaviour, and Mr Shaw's written response, it concluded that Mr Shaw had repeatedly failed to obey lawful and reasonable directions and that he had engaged in behaviour towards his managers and colleagues which constituted bullying or which was otherwise inappropriate behaviour in the workplace. This constituted the reason for dismissal, as set out in the letter of termination, dated 11 April 2014.

[6] Following Mr Shaw's dismissal, ANZ applied pursuant to s. 587(3) of the Act for an order under s. 587(1)(c) dismissing Mr Shaw's application for an order to stop bullying. ANZ's application was made on the ground that Mr Shaw's application for an order to stop bullying had no reasonable prospect of success. This was because it could no longer be said, following the termination of Mr Shaw's employment, that there was any risk that Mr Shaw would continue to be bullied at work by an individual or a group of individuals identified in his application. On 9 May 2014, I granted ANZ's application for dismissal and I dismissed Mr Shaw's application for an order to stop bullying 1.

[7] In his application that is the subject of this decision, Mr Shaw alleges that adverse action in the form of dismissal that took effect on 11 April 2014 was taken by ANZ in contravention of s. 340 of the Act, because Mr Shaw had exercised workplace rights. The workplace rights are constituted by complaints or inquiries made by Mr Shaw in relation to his employment in or about July 2011 and in or about August 2013, as well as the application that he made for an order to stop bullying to this Commission on 4 March 2014.

[8] Turning then to the principles that are to be applied in determining whether to grant an extended period outside of the time prescribed by the statute. Mr Shaw's dismissal took effect on 11 April 2014. His application to the Commission for it to deal with his dismissal-related general protections dispute should have been made within 21 days after the dismissal took effect. That is, by 2 May 2014. The application was made on 5 May 2014 and was therefore three calendar days outside of the time prescribed but only one business day outside of the time prescribed.

[9] The Commission may allow a further period within which an application may be made, but the discretion to allow a further period will only be exercised if the Commission is satisfied that there are exceptional circumstances taking into account the reason for the delay, any action taken by Mr Shaw to dispute his dismissal, any prejudice to ANZ, including prejudice that is caused by the delay, the merits of the application and fairness as between Mr Shaw and other persons in a similar position.

[10] The matters that must be taken into account, which are set out in s. 366(2) of the Act, are similar to but not the same as the matters that are to be taken into account in considering whether there are exceptional circumstances in the context of an unfair dismissal remedy application identified in s. 394(3) of the Act. It is with that note of caution that authorities which concern extensions of time about unfair dismissal matters are to be viewed in their application to the considerations set out in s. 366(2) of the Act. The statutory context and overall content is similar, but it is not the same.

[11] It is clear from the structure of s. 366(2) of the Act that each of the matters that are set out therein must be taken into account when assessing whether there are, or exist, exceptional circumstances. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but those circumstances need not be unique, unprecedented or even very rare. Before considering whether to exercise my discretion to allow a further period it is first necessary, therefore, to consider whether there are in this case exceptional circumstances that would warrant that consideration.

[12] Turning to the matters that are specifically set out in s. 366(2), and first to the reason for the delay. The authorities in this area make clear that there must be an acceptable reason for the delay. Mr Shaw needs to advance a credible reason, or credible reasons, explaining the whole of the period that the application was delayed. Mr Shaw advances two broad reasons, which were supplemented in oral argument at the hearing, as the reason for the delay or explaining the reason for the delay.

[13] First, Mr Shaw says that when he received the letter of termination on 11 April 2014, he was preoccupied in the preparation of his submissions in support of his application for an order to stop bullying which was due to be filed by him on 15 April 2014. Mr Shaw says that as a consequence of the bullying behaviour that he had experienced at ANZ, he had developed a panic disorder, post-traumatic stress disorder and a major depressive illness. He points to medical reports which were prepared on 18 February 2014, 25 February 2014 and 30 May 2014 in support of his contention. It is not disputed by ANZ that he suffers from the medical conditions which I have just outlined.

[14] Mr Shaw says that the preparation of the submission in support of his application for a bullying order required him to re-live the experiences of bullying and, accordingly, his mental state was affected by feelings of anxiety and depression at the time. Mr Shaw does not provide any medical evidence which supports this contention, but ANZ did not cross-examine him on that point and I am prepared to accept that, at the time, there will have been some adverse effects on his mental condition by reason of the matters that he sets out and which are noted above.

[15] Mr Shaw says that the receipt of the termination letter also caused an immediate spike in these conditions. He says that although he had anticipated that his employment might be terminated, the actual termination of his employment was still a shock. No medical evidence is provided to support this contention, but ANZ did not cross examine Mr Shaw on this contention and I am prepared to accept that he was in shock and, by reason of his mental condition, that shock was likely to have had an adverse effect on his overall mental wellbeing when he received the termination letter.

[16] I take it from the submissions on this point that Mr Shaw makes, that at that time his cognitive functioning was affected by a combination of having to re-live unpleasant experiences as an employee of ANZ whilst he was preparing his bullying order submissions and, combined with the shock of the dismissal, this consequently was a contributing factor to the delay in making his application within the time prescribed.

[17] The second point that Mr Shaw makes is that after receiving the letter of termination from ANZ, he consulted the Commission's web site and downloaded the general protections bench book which is available on that site. On reading the bench book, Mr Shaw noted that there was a 21-day time limit which applied to applications of this kind. He noted that if the last day on which such an application could be made fell on a weekend or a public holiday, that he was entitled to lodge the application the next business day.

[18] Mr Shaw says that he calculated the last day on which an application could be made by taking the first day following his dismissal and adding to it 21 days. He therefore concluded that the last day on which he could make his application was Saturday, 3 May 2014 and consequently concluded that he could make his application on Monday, 5 May 2014. Mr Shaw's legal analysis was correct. However, his arithmetic was not. Mr Shaw says that once he calculated the last day on which his general protections application could be made, he had no cause to re-visit the issue.

[19] He says that the error that he made in the calculation was made at a time when he was fully occupied in the preparation of what he describes as complex and lengthy submissions to the Commission in relation to his application for a bullying order, the preparation of which exacerbated his anxiety and depression and that the notification of the termination of employment also caused a sudden elevation in these conditions.

[20] Mr Shaw says that it was a simple error, which was one that he would not normally make, but it was made hurriedly in exceptionally stressful circumstances in which the symptoms of his illness impaired his thought processes. That proposition is not seriously challenged by ANZ and I accept that it was likely that the exacerbation at that time of Mr Shaw's illness impaired his capacity to accurately calculate the period within which he was required to file his application.

[21] Mr Shaw submitted a medical report dated 30 May 2014, which provides that Mr Shaw continues to be treated for post-traumatic stress reaction, a major depressive illness and panic disorders, and that his condition has not improved since the last report, being 18 February 2014. I have little doubt that the whole of the episode concerning Mr Shaw's application for an order to stop bullying, the preparation of submissions in support of that application, his dismissal from his employment, dealing with and responding to ANZ's application that Mr Shaw's application for an order to stop bullying be dismissed, was stressful and was likely to have had an adverse effect on his depressive illness.

[22] Stress, shock and confusion are not uncommon reactions or responses to a dismissal. In and of themselves, such responses are neither exceptional nor do they provide an acceptable reason that would explain the whole of the period that an application was delayed. However, I accept that Mr Shaw's capacity to accurately calculate the time frame was impaired by reason of the matters outlined, and if that were the only matter that I had to take into account, I would readily find that there was an acceptable explanation for the delay.

[23] Although Mr Shaw relies on his medical condition as an explanation for the whole of the period of the delay, there is no evidence that his cognitive functioning was impaired to such a degree as would have the result that he was unable to make the application within the time prescribed. Indeed, much of Mr Shaw's conduct during the period between his dismissal and the date on which he made this application, is strongly suggestive of the contrary.

[24] First, Mr Shaw was able to compile, complete and file submissions in support of his application for an order to stop bullying within the time that had been prescribed by me in directions that I had issued in relation to that application. Second, Mr Shaw was able to compile, complete and file submissions in opposition to ANZ's application for a dismissal of Mr Shaw's bullying orders application within the time prescribed by me in directions that I had made in relation to that application. Indeed, he filed those submissions some four days in advance of the date due. Third, Mr Shaw downloaded the general protections benchbook, read it and understood what was required of him in order to make an application within time.

[25] That he was occupied in the preparation of the submissions to which I have just referred is not an acceptable reason for the delay and, as I indicated, is suggestive of a clear capacity to comply with time lines. Mr Shaw says that during the period he also had family obligations to attend to and that he was the primary carer of his very young child. I accept that that is so, but those matters are not matters which are unusual and they are matters which face many other people in the community. They do not provide an acceptable explanation for the delay.

[26] It seems to me that Mr Shaw simply miscalculated the date on which the application had to be made and that is the explanation for the delay. As I indicated, even if I accept, and I do accept, that the error was made in exceptionally stressful circumstances where symptoms of his illness impaired his thought process, that merely provides an explanation for the miscalculation and perhaps an explanation for part of the delay. It does not provide an explanation for Mr Shaw's action to delay the application until the last day that he had calculated.

[27] There is no evidence which would suggest that he was prevented from or seriously impaired, by reason of his depression or his panic disorder, in making the application at some earlier point. It seems to me that Mr Shaw elected to wait until the last day on which he thought he could make the application. That he made that election compounded his earlier error, but it does not provide an acceptable explanation for the whole of the period of the delay.

[28] As I indicated during my exchange with Mr Shaw earlier in this hearing, a decision to wait to do something until the last possible moment is fraught with risk. Mr Shaw had the whole of the 21-day period during which he could have made the application. He chose to wait until the last day. Mr Shaw elected to take the risk and, in doing so, he was caught out by his earlier miscalculation. Taken in its totality, Mr Shaw's explanation of the reasons for the delay does not, in my view, provide an acceptable explanation for the whole of the period. The absence of an acceptable explanation for the whole of the period weighs against Mr Shaw in this matter.

[29] Turning then to the question of the action taken by Mr Shaw to dispute his dismissal, although Mr Shaw did not, on his own submission, dispute his dismissal with ANZ directly, I am prepared to take into account the fact that he took some action to dispute his dismissal in his submissions that he filed on 28 April 2014, in opposition to ANZ's application for dismissal of Mr Shaw's application for an order to stop bullying. This is a factor that I weigh in the balance in favour of Mr Shaw.

[30] Next is the question of prejudice to the employer. ANZ properly, in my view, does not contend that it will suffer any prejudice by reason of the delay, but says that it will suffer the usual prejudice by way of incurring additional costs if Mr Shaw's application is permitted to proceed outside the time prescribed. The prospect of incurring additional costs in defending an application is a factor in determining prejudice, but in this case I do not regard it as a significant factor which would weigh against the grant of an extended period within which to make an application. I note, however, that mere absence of prejudice does not mean that there is a sufficient basis to grant an extension of time. This is just one of the factors that must be weighed.

[31] In my view, ANZ well knew that an application of the kind ultimately made by Mr Shaw was likely to be made and knew before the time within which the application could be made had expired, that Mr Shaw was aggrieved by his dismissal. It would have known on 28 April 2014 or shortly thereafter. In this case, I am prepared to accept that the absence of prejudice or the limited prejudice identified by ANZ is not a factor that weighs against Mr Shaw and indeed, on balance, I am inclined to weigh that matter in favour of Mr Shaw because it was on notice of Mr Shaw’s grievance concerning the dismissal.

[32] Turning next to the merits of the application, there is almost no evidentiary material before me which deals with the question of merit. Indeed, at this stage of an application of this kind, other than assertions made in the application and the response, there is not an evidentiary basis which would inform a judgment on merits. ANZ submit that the substantive application is lacking in merit. I disagree and do so for the following reasons.

[33] First, it is likely in the running of the substantive application that the evidentiary matters which fall to Mr Shaw to establish will be undisputed. That is, it is likely not to be in dispute that ANZ took adverse action. It did so on 11 April 2014 when it dismissed Mr Shaw. Similarly, it is not likely to be in dispute that Mr Shaw exercised a workplace right. Putting aside the complaints that he made, there is little doubt that his bullying application was the exercise of a workplace right. Mr Shaw alleges that the adverse action in the form of dismissal was taken because he exercised a workplace right. Mr Shaw might also allege that ANZ dismissed him to prevent him from exercising a workplace right. That is the case that he needs to make and it seems to me that he will readily make that case if this matter proceeds.

[34] It is at that point that the evidentiary onus will shift to the ANZ to establish that it did not take adverse action for the reasons alleged or for reasons that included that reason. ANZ has set out the reasons for its dismissal in its letter of termination. The decision-maker will, no doubt, be called to give evidence in a proceeding if this matter proceeds and the question of the “reason” will be determined by a court or by this Commission by arbitration, but that will be done after the cross-examination of the witness evidence that ANZ will lead. As things stand, there is a sufficient basis for me to conclude that Mr Shaw's substantive application is not without merit. To put it another way, the application is arguable. This is a factor that weighs slightly in Mr Shaw's favour.

[35] Turning next to the question of fairness as between Mr Shaw and other persons in a like position, ANZ relied on several decisions involving similar factual scenarios that arise in the present case and in which an extension of time was refused. I accept that the cases relied on by ANZ, which are set out at paragraphs [27] through [38] and again [47] to [48] of its written submissions, raise similar factual issues to those in the present case, but they are not identical and they do not raise each of the matters in combination as arise in this case. Cases of this kind will generally turn on their own facts.

[36] This consideration is ultimately concerned with the importance of the application of consistent principles to be applied in cases of this kind, thus ensuring fairness as between Mr Shaw and other persons in a similar or like position. In the present case I regard this consideration as essentially neutral.

[37] As I have observed in other cases of this kind, statutory time limits that are applicable to the exercise of a person's right to make an application of the kind that Mr Shaw makes, as is also the case in relation to unfair dismissal remedy applications - those time limits are in place as an expression of the Parliament's intention that a person's rights must be exercised promptly within a particular time frame so as to bring about some element of certainty.

[38] Time limits seek to balance, on the one hand, the right to bring an action, against on the other the desirability for prompt action and certainty. This is so that questions about actions that have been taken by one party will need to be agitated within a particular time frame, otherwise they are lost. Applications alleging dismissal-related general protections contraventions are to be made to the Commission within 21 days after the dismissal takes effect. It is only in exceptional circumstances that the Commission will even consider allowing a further period.

[39] Weighing all the matters in s. 366(2) and noting that I give substantial weight to the first consideration, there seems to me to be little that would establish that exceptional circumstances warranting a consideration of the exercise of my discretion to allow a further period within which Mr Shaw can make his application exist. True it is that Mr Shaw's application is not without merit, but the absence of an acceptable explanation for the delay of the whole period, bearing in mind that Mr Shaw had the full 21 days within which to lodge his application but waited until the last day of his miscalculated time period to act, in my view combine to outweigh merit and other considerations.

[40] That Mr Shaw took minimal steps to dispute his dismissal and that there is no real prejudice to the ANZ, does not in my view result in a significant shift of the balance the other way. In the circumstances, I am not satisfied that there are exceptional circumstances and so I do not allow a further period within which the application may be made. Mr Shaw's application, under s. 365 of the Act, is dismissed. An order dismissing Mr Shaw’s application has been issued separately in PR551960.

DEPUTY PRESIDENT

Appearances:

M. Shaw on his own behalf

K. Manton for ANZ Bank

Hearing details:

2014.

Melbourne.

12 June.

 1   PR550413

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551961>