Aiming He v NSYD WC Pty Ltd - [2023] FWCFB 60

[2023] FWCFB 60

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Aiming He
v

NSYD WC Pty Ltd

(C2023/654)

DEPUTY PRESIDENT ASBURY
COMMISSIONER BISSETT
COMMISSIONER JOHNS

BRISBANE, 20 MARCH 2023

Appeal against decision PR750315 of Deputy President Boyce at Sydney on 8 February 2023 in matter number U2022/11974

Introduction

Ms Aiming He (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against an ex-tempore decision and order[1] (Decision) made on 8 February 2023 by Deputy President Boyce (Deputy President).

The Decision concerned a consideration of whether to grant an extension of time within which to make an application for an unfair dismissal remedy pursuant to s.394 of the Act.

An application for an unfair dismissal remedy made pursuant to s.394 of the Act must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (Commission) allows.

There is a lack of clarity about when the Appellant’s termination of employment took effect. The Appellant last worked for the Respondent on 21 November 2021. Before the Deputy President the Respondent did not contest that the employment ended on 30 November 2021. However, the Respondent contended that the Appellant resigned.

Before us, Tony Gao, acting for the Appellant, who is his mother, contended that the termination of employment occurred on 23 December 2021.

Consequently, the application was required to be lodged by either:

a) 21 December 2021; or
b) 13 January 2022.

The unfair dismissal application was filed on 18 December 2022. That is to say, the application was either 362 or 339 days out of time.

The Deputy President refused to grant an extension of time for the filing of the application as he was not satisfied there were exceptional circumstances and therefore, there was no basis to allow an extension of time.

This matter was listed for permission to appeal only. NYSD WC Pty Ltd (Respondent) was not required to file any material and it did not do so. The application for permission to appeal was heard on 8 February 2023.

For the reasons that follow, permission to appeal is refused.

Background

The Appellant commenced employment with the Respondent on 14 April 2016 (although she had worked for related entities prior to this date). The Respondent runs a restaurant called New Shanghai, Westfield Sydney.

On 21 November 2021 the Appellant worked her last shift. The Respondent contended that the Appellant resigned on that day. This is contested.

On 5 occasions between 4 and 27 November 2021 the Appellant attended medical clinics and received treatment. The Appellant also had a Telehealth consultation on 30 November 2021.

On 30 November 2021 in a WeChat exchange between the Appellant and a representative of the Respondent, the Appellant was advised “don’t come to work, you don’t need to come to work. I got new people.”…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aiming He v NSYD WC Pty Ltd

Details

AGLC: Aiming He v NSYD WC Pty Ltd [2023] FWCFB 60
Case: [2023] FWCFB 60
Decision Date: 20 MARCH 2023

CaseChat Overview and Summary

Aiming He has appealed against a decision of the Fair Work Commission (FWC) which dismissed her application for an extension of time to lodge a claim for unfair dismissal. The appeal required the Full Bench to determine whether to grant permission to appeal the decision. The Full Bench found that there was no arguable case of appealable error and no public interest in granting permission to appeal.

The appeal concerned whether the FWC should have granted an extension of time within which Ms He could make an unfair dismissal application. The FWC found that her reasons for delay in lodging the application did not constitute exceptional circumstances. The Full Bench considered the appeal grounds and found that they were essentially a repetition of the reasons for delay presented at first instance. The Full Bench held that ignorance of the law and lack of English proficiency are not exceptional circumstances. The Full Bench also found that the Appellant's reasons for delay did not explain the significant delay in lodging the application. The Full Bench was not satisfied that there was an error in the FWC's decision and found that it did not attract the public interest.

The Full Bench considered whether the appeal raised an arguable case of appealable error or if there was a public interest in granting permission to appeal. The Full Bench found that the appeal did not raise an arguable case of appealable error and did not establish a public interest in the matter. The Full Bench was not persuaded that the appeal raised issues of importance and general application, or that the FWC's decision was unjust or disharmonious with other decisions dealing with similar matters.

The Full Bench refused permission to appeal the FWC's decision. The Full Bench found that the appeal did not demonstrate an arguable case of appealable error or a public interest in granting permission to appeal. The Full Bench upheld the FWC's decision that the Appellant's reasons for delay did not constitute exceptional circumstances and dismissed the application for unfair dismissal.

Orders