Thi Hai (Amy) Duong Luong v Commonwealth Bank of Australia

[2017] FWC 2953

[2017] FWC 2953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thi Hai (Amy) Duong Luong
v
Commonwealth Bank of Australia
(U2017/4300)

COMMISSIONER BISSETT MELBOURNE, 30 MAY 2017

Application for an unfair dismissal remedy - extension of time - application dismissed.

[1] Ms Thi Hai (Amy) Duong Luong (Ms Luong) was dismissed from her employment with the Commonwealth Bank of Australia (the Bank) on 5 September 2013.

[2] She lodged her application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 12 April 2017.

[3] Section 394(2) of the FW Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect. Ms Luong has made her application 3 years, 6 months and 30 days after the date the dismissal took effect meaning her application was made 3 years, 6 months and 9 days outside the statutory time limit.

Background

[4] Ms Luong made an initial application for unfair dismissal within 21 days of the date of her dismissal (U2013/13580) in September 2013. That application was subject to conciliation at the Fair Work Commission (the Commission) and a settlement was reached on the matter. The settlement agreement was subject to a written Deed of Release signed by Ms Luong on 11 December 2013 and a representative of the Bank on 20 December 2013.

[5] The Deed of Release required the Bank to:

● Accept a resignation from Ms Luong and note its records accordingly;

● Pay a specified amount to Ms Luong;

● Provide Ms Luong with a certificate of service;

● Make reasonable endeavours to ensure that on receipt of any external enquiry to HR Direct (the HR help centre for the Bank), it would confirm her date of employment and that she had resigned;

● Make reasonable endeavours to ensure the manager of the Springvale Branch and relevant Area Manager not knowingly disparage Ms Luong; and

● Bear its own costs.

[6] Ms Luong was required to:

● Provide a letter of resignation to the Bank;

● File a Notice of Discontinuance with respect to the proceedings before the Commission;

● Not disparage the Bank; and

● Bear her own costs.

[7] In exchange for these terms Ms Luong released the Bank from all claims arising with respect to her employment including those arising under the FW Act.

[8] In accordance with the Deed of Release Ms Luong provided a letter of resignation to the Bank and filed a notice of discontinuance with respect to her application on 16 January 2014. The Bank paid to Ms Luong the specified amount (less taxation payments) on 8 January 2014.

[9] Ms Luong does not dispute that she received payment as specified in the Deed of release but takes issue with other aspects of the Deed. In particular, Ms Luong says that the bank’s internal systems have her record marked as “under investigation” which is effecting her ability to gain further employment.

The jurisdictional objection

[10] The Bank says that there are a number of objections to Ms Luong’s application. First, it says that the Deed of Release signed by Ms Luong and the Bank released the Bank from any further proceedings with respect to her employment. It says therefore that the Commission cannot entertain her application.

[11] Further, the Bank submits that Ms Luong’s application was made a substantial period out of time and that she has not been able to explain the delay such that an extension of time should not be granted.

[12] The Bank also acknowledges that Ms Luong’s representative filed a Notice of Discontinuance in U2013/13580.

[13] The Bank says it has grappled with which of these objections the Commission should deal with first but considers the existence of the Deed of Release as a bar to proceedings to be the appropriate first consideration.

[14] I have decided that the jurisdictional objection to be resolved in the first instance is if an extension of time should be granted to Ms Luong within which to make her application for unfair dismissal. It seems to me that, until an extension of time is granted, there is no valid application before the Commission to which other factors may then weigh.

[15] For the reasons given below however, I am satisfied that I can, in considering the grant of an extension of time, take into account both the Deed of Release and the Notice of Discontinuance.

Deed of Release

[16] The Bank relies on the Deed of Release as a complete bar to the proceedings brought by Ms Luong and says it should be given effect according to its terms. For this reason it says the application should be dismissed pursuant to s.587(1) of the FW Act on the grounds that it has no reasonable prospect of success. It relies for this on the decision in Australian Postal Corporation v Gorman 1 where Besanko J held that

[31] An accord and satisfaction extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement. A valid accord and satisfaction is not a discretionary factor relevant to the subsequent litigation of the original claim; it is an answer to the claim.

[32] It seems to me that the fact of an accord and satisfaction can either be raised under the Act at an ‘interlocutory’ stage and at the final hearing or it cannot be raised at all. As it is a complete answer to a claim there would be no reason why it could be raised at a final hearing but not at a preliminary stage under a section such as s 587.

[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Ch 3 Pt 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subs 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.

[17] The Deed of Release signed by Ms Luong and the Bank would seem to be just such an “accord and satisfaction.”

[18] Ms Luong says of the Deed of Release:

● She only signed it on condition that the Bank would remove from its internal systems in relation to her employment reference to her being “under investigation”;

● She consistently told the Bank that if they did not remove that reference she would recommence proceedings;

● The Bank HR people had hung up on her or ignored her when she requested that the change be made;

● The inclusion on the internal system that she was “under investigation” was affecting her ability to gain further employment;

● The Bank waited until she had run out of money before giving her the Deed of Release to sign and therefore left her with no choice;

● The Bank must be trying to cover up what they really are saying and/or they have not entered into the HR system that she resigned because every time she applies for a job she is employed for a month or so but then not offered ongoing employment.

Extension of time

[19] The Commission has the power, pursuant to s.394(3), to extend the time within which an application can be made if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and

(b) whether the person first 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.

[20] I have considered each of these matters.

Reason for the delay

[21] Ms Luong says that, in the three years and six months since her employment was terminated she has sought to raise with the Bank the issues of the inclusion of “under investigation” on her internal Bank file. She says she contacted the Bank about the matter in September 2013, May 2014, January 2015 and again in January 2017. Ms Luong says that the Bank staff ignored her or did not return her calls or emails.

[22] Ms Luong sought an order from the Commission that the phone records of these contacts be produced. Whilst I considered the request for such an order I determined that, in circumstances where the delay in making the application for unfair dismissal is over three years there would be little utility in doing so. Even if I accepted that Ms Luong had sought to follow up the matter of inclusion of “under investigation” on the occasions mentioned, it still leaves a substantial period for which there was no explanation for the delay in making the application.
[23] The Bank says that Ms Luong has failed to provide an acceptable explanation for the totality of the delay in making this application.

[24] Whilst I accept that Ms Luong has, from time to time, sought to challenge the Bank with respect to the inclusion of “under investigation” on her internal file, I am not satisfied that this provides a satisfactory explanation for the delay of over three years and six months in making this application for unfair dismissal.

[25] Further, the matters Ms Luong says she has raised with the Bank over the last three and half years are not matters to do with her dismissal but rather the grounds on which she settled her application for unfair dismissal in December 2013.

[26] Ms Luong’s inability to provide an explanation for the totality of delay in making her application weighs against the grant of an extension of time.

When person first became aware of dismissal

[27] It is not disputed that Ms Luong became aware of her dismissal when it occurred in September 2013. This is a neutral consideration.

Action taken to dispute the dismissal

[28] Ms Luong made an application for unfair dismissal at the time of her dismissal in 2013. This application was subject to proceedings and was settled on terms agreed to by Ms Luong as detailed above.

[29] Her further actions are those set out above under the reason for the delay.

[30] As observed above, the actions taken by Ms Luong were not actions to dispute her dismissal as such but rather go the grounds on which she reached a settlement of that dismissal with the Bank. Despite this observation I consider this a neutral matter in my consideration.

Prejudice to the employer

[31] The Bank claims significant prejudice if any extension of time was granted. Some of those employees involved in the dismissal of Ms Luong no longer work for the bank or are not readily available to give evidence. The delay also will affect the ability of witnesses to provide contemporaneous evidence.

[32] The Bank also claims prejudice in allowing Ms Luong to retain the benefits of a settlement agreement while at the same time pursuing her claim.

[33] Ms Luong agrees that she has had the benefit of the settlement payment but otherwise makes no submission on this question.

[34] I have, ultimately, accorded this matter no weight for the reasons that will become apparent below.

Merits

[35] Ms Luong says that her claim has merit. She says that she was denied proper pay and superannuation when she commenced employment, that the Bank failed to recognise that she had taken sick leave to travel to see her ill grandfather, that she was subject to bullying and harassment at work, and that she had been a loyal employee for 11 years.

[36] The Bank submits that there is little merit in Ms Luong’s claim for unfair dismissal. It says that she applied for annual leave which was denied. She then provided a medical certificate for the same period that said she was unfit for work and receiving medical treatment then proceeded to travel overseas. The decision to dismiss her in such circumstances was valid and defensible.

[37] Whilst Ms Luong had difficulty articulating her claim I understand that she feels she was harshly treated by the Bank when it took the decision to dismiss her. She believes that it did not fully recognise her right to spend time with her family when her grandfather died.

[38] It is normally the case that the Commission will not make a finding as to the merits of a case in deciding whether or not to grant an extension of time. 2

[39] The difficulty I have in this respect is, even if I accepted that Ms Luong’s claim for unfair dismissal was meritorious, she signed a Deed of Release. In signing that Deed she acknowledged that the Bank could “plead [the] Deed in bar to any proceedings arising out of…or concerning the matters referred to in [the] Deed”. In signing the Deed she also warrants that she has read the terms of the Deed and that she has had an opportunity to seek legal advice about the Deed and its terms.

[40] Ms Luong was represented in the 2013 proceedings. She had the benefit of her own representative’s advice before signing the Deed. Whilst she complains that Mr Peter Griffit (sic) of the Bank had given her certain assurances in addition to the Deed of Release (that, for example, she would be able to get a job) there is no evidence of this.

[41] I am satisfied that, even if the claim for unfair dismissal had merit (and I make no judgement on this), the Deed of Release she signed will act as a bar to any further proceedings in the Commission such that her application for relief from unfair dismissal is highly unlikely to be heard.

[42] This consideration weighs heavily against the grant of an extension of time.

Fairness

[43] No submissions were made as to fairness. It is not a matter I have taken into account.

Approach of the Commission

[44] An extension of time can only be considered by the Commission if exceptional circumstances exist taking into account those matters outlined above. The wording of s.394(2) of the Act does not suggest that the Commission is limited, in deciding if exceptional circumstances exist, to those matters enumerated in s.394(2)(a)-(f). It is therefore reasonable for me to also take into account the Deed of Release signed by Ms Luong in December 2013 and the notice of Discontinuance filed by her representative.

[45] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 3 where the Full Bench of Fair Work Australia found:

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…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.

[46] It is also the case that, in considering the reason for the delay the totality of the period of delay must be considered.

[47] The onus of establishing exceptional circumstances is on Ms Luong who needs to provide a credible reason for the whole of the period that the application was delayed. 4

[48] This point was emphasised by the Full Bench in Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic: 5

[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank 6 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] …The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ  the correct approach.”

Conclusion

[49] Whilst I accept that the circumstances put to me by Ms Luong are out of the ordinary, they are not such grounds on which I could find that an extension of time should be granted.

[50] In reaching my decision I have also taken into account the existence of the Deed of Release and the Notice of Discontinuance.

[51] Ms Luong has taken the benefits of a settlement agreement with the Bank. She signed a Deed of Release. Even if the Deed of Release had been breached (and I am not convinced, on the evidence 7 and other material before me, that this is the case) that is not grounds for granting an extension of time within which Ms Luong might make her application for unfair dismissal. She has already made her application with respect to her dismissal – she did so in 2013. If she believes the Deed of Release has not been complied with it is a matter she must take up in another jurisdiction. It is not a matter the Commission may deal with.

[52] Further, Ms Luong filed a Notice of Discontinuance. That Notice of Discontinuance was in relation to “the matter” before the Commission – that matter was Ms Luong’s application for unfair dismissal made in 2013 – the same matter subject to the current application. Current decisions of the Commission make it clear that the Commission does not have the power to set aside a Notice of Discontinuance. 8

[53] During the hearing of this application for an extension of time Ms Luong made a number of claims about the conduct of some employees of the Bank. These claims were made without any supporting evidence and, in some cases, were contradicted by the material Ms Luong provided. I have drawn no adverse inferences about the conduct of anyone at the Bank. It seems to me that, when contacted, Bank employees have advised Ms Luong that her “exit” from the Bank has been recorded as a resignation in line with the Deed of Release. There is no evidence that any advice to the contrary has been given by employees of the Bank to any prospective employer of Ms Luong.

[54] Further there is no evidence that the notation of Ms Luong’s internal record at the Bank of “under investigation” has been disclosed to anyone outside the Bank. The advice of the Bank – which I have no reason to doubt – is that this is an internal notation only and would not be disclosed without the specific consent of Ms Luong.

[55] I am not therefore satisfied that exceptional circumstances exist such that an extension of time should be granted to Ms Luong to make her application for unfair dismissal.

[56] The application for relief from unfair dismissal has been filed outside the statutory time limit and is therefore dismissed.

[57] An order 9 to this effect will be issued.

COMMISSIONER

Appearances:

A. Duong Luong on her own behalf.

H. Fairhall, for Commonwealth Bank of Australia.

Hearing details:

2017.

Melbourne:

May 29.

 1 [2011] FCA 975.

 2   Kyvelos v Champion Socks Pty Ltd Print T2421.

 3 (2011) 203 IR 1, [13].

 4   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] 197 IR 40.

 5   [2016] FWCFB 349.

 6   [2015] FWCFB 287.

 7   Exhibit CBA1.

 8   [2015] FWCFB 523, [11].

 9   PR593331.

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