Yvonne Wong v Australia and New Zealand Banking Group Limited

[2023] FWC 2295

[2023] FWC 2295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Yvonne Wong
v

Australia And New Zealand Banking Group Limited

(C2023/3589)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 13 SEPTEMBER 2023

Application to deal with contraventions involving dismissal - application made outside of the time prescribed in s 366(1) – consideration whether to allow a further period within which application should be made – no exceptional circumstances – extension of time refused - application dismissed.

1. This is an edited version of my decision given ex tempore and recorded in transcript on 8 September 2023.

1. Ms Yvonne Wong, the applicant, was employed by the Australian and New Zealand Banking Group Limited, the respondent, in Singapore. The employment ended on or around 16 April 2015. Whether the applicant was dismissed or simply resigned is in dispute. On or around 20 June 2023, Ms Wong made an application under section 365 of the Fair Work Act 2009 (Act) in which she alleged that she had been dismissed in circumstances which contravened Part 3-1 of Chapter 3 of the Act.

1. Section 366 of the Act provides that an application under s 365 must be made within a period of 21 days after the dismissal took effect or within such further period as the Commission may allow. A delay of more than eight years is evident in this application and so if the application is to proceed a further period within which the application may be brought must first be allowed. Section 366(2) provides the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account the reason for the delay; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the applicant and other persons in a like position.

1. The Act does not define that which is meant by ‘exceptional circumstances’, but it is evident from decisions of this Commission that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, uncommon, but the circumstances themselves need not be unique or unprecedented, nor even very rare. Consideration of exceptional circumstances may include a consideration of a single exceptional factor or a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together may be exceptional.

1. Turning then to the question of the reason for delay, Ms Wong has set out in her written material that she was sick and unable to lodge an application within 21 days after her dismissal and that she had sought professional psychologist and psychiatric treatment in or around January 2022 and attended four sessions since July of 2023 showing no signs of improvement. The applicant contends that because she was sick, she was unable to lodge her claim in Australia and was only able to lodge a wrongful dismissal claim in Singapore in that time. No independent medical evidence was provided to verify the claims, but in any event the applicant does not explain how it is that her illness caused her to not be able to lodge an application for a period of some eight years. Moreover, the applicant’s contention that her recent consultation suggested that she was not showing any signs of improvement would tell against any conclusion that such mental health conditions from which the applicant may suffer prevented her from making an application. She was plainly able to do so notwithstanding her condition not improving.

1. I do not consider that the explanation proffered, particularly absent cogent medical evidence to support the contention, provides an acceptable explanation for any part of, much less the whole of the eight‑year period of delay. In the circumstances the absence of an explanation which is acceptable for the period of delay weighs significantly against a conclusion that there are exceptional circumstances.

1. Turning to whether the applicant took any steps to dispute her purported dismissal, it is evident that the applicant took a step in that she had made a claim in the Singapore Employment Claims Tribunal in or around 2019 and that this was several years after the purported dismissal. I do not consider that that claim made so significantly after the period for which an application might be made in Australia is a matter that weighs in the applicant’s favour as showing that she took steps to dispute her dismissal.  No other step to dispute her dismissal beyond making this application is identified.

1. Matters that are usually relevant to this assessment include the applicant taking a step to dispute a dismissal at a time proximate to the date of dismissal which at least puts the employer on notice that the dismissal is in contest. Here, the purported dismissal took effect in April of 2015 and the claim brought in 2019 is not on any view proximate to the time of the applicant’s purported dismissal and so does not weigh in favour of any consideration that there might be exceptional circumstances.

1. Next is the issue of any prejudice. The respondent contends that there will be or is likely to be prejudice because of the length of the delay. Given the range of allegations that are made in connection with the reason for the dismissal, including the extended range of allegations which are contained in the applicant’s written submissions, it seems to me likely that the respondent will need to find persons who were employed and may no longer be employed by the organisation, and who might have been relevant decision‑makers at the time, in order to fairly respond to the allegations.

1. There is also the question of the quality of the recollections that might be available in respect of any evidence of witnesses on which the respondent might seek to rely. In those circumstances I consider that there is likely to be some prejudice to the respondent in circumstances of an application that is made more than eight years outside of the time prescribed. That there is likely to be prejudice is a matter that weighs against any conclusion that there are exceptional circumstances.

1. As to the merits of the application, it seems to me that putting to one side the allegations that are made by the applicant as to the reason for her dismissal, noting that the dismissal itself was in contest, the biggest hurdle which faces the applicant is that it appears that she is not a person who is protected by the general protections scheme under the Act.

1. The contract of employment was one made in Singapore; the work was performed in Singapore; the dismissal, if it was a dismissal, happened in Singapore. All the relevant events occurred in circumstances which were outside of the coverage of the Act and so on that basis the merits of the application are weak indeed, and likely to have no reasonable prospect of success.

1. As to the question of fairness as between the applicant and other persons in a like position, there is no relevant comparator identified which would provide a basis for considering the fairness requirement. In those circumstances the fairness requirement consideration as between the applicant and other persons in a like position weighs neutrally. As should be evident from my consideration of each of the matters, save for the last, each other matter weighs against a conclusion that there are exceptional circumstances.

1. This is an application that was lodged at a time which is significantly outside of the statutory time frame and is one that is in all likelihood outside of the jurisdiction of the Commission in any event because it relates to conduct which is not covered by the Act and persons who are not covered by the general protections scheme in the Act. I am, therefore, not satisfied that there are exceptional circumstances. That being the case, there is no occasion for me to consider whether I should exercise my discretion.

1. Consequently, I order that the application made under s 365 of the Act by Ms Yvonne Wong be dismissed.

1. An order giving effect to my decision was issued separately in PR766029.

DEPUTY PRESIDENT

Appearances:

Y Wong for herself

S Kollmorgen for the respondent

Hearing details:

8 September 2023
Microsoft Teams

Final written submissions:

Yvonne Wong: 6 September 2023

Australia and New Zealand Banking Group Limited: 28 August 2023

Printed by authority of the Commonwealth Government Printer

<PR766031>