Aiping Zhang v Gibson Importing Co. (Aust.) Pty. Ltd
[2024] FWC 3341
•2 DECEMBER 2024
| [2024] FWC 3341 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aiping Zhang
v
Gibson Importing Co. (Aust.) Pty. Ltd.
(U2024/13005)
| DEPUTY PRESIDENT BELL | MELBOURNE, 2 DECEMBER 2024 |
Application for an unfair dismissal remedy – extension of time application – circumstances not exceptional – application dismissed.
On 31 October 2024, Ms Aiping Zhang (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges she was unfairly dismissed by Gibson Importing Co. (Aust.) Pty. Ltd. (Respondent) on 5 February 2024. In its Form F3 Employer Response filed with the Commission on 12 November 2024 the Respondent states Ms Zhang was dismissed on 22 February 2024, which was also the date they notified Ms Zhang of her dismissal.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission it appears that the Applicant made her unfair dismissal application 248 days outside the 21-day timeframe based on the date of dismissal taking effect on 5 February 2024, or 231 days if the date of dismissal is 22 February 2024. Based on the material before me I am satisfied the date on which Ms Zhang’s dismissal took effect was 22 February 2024. The Commission must therefore determine in the first instance if an extension of time should be granted for the making of the application.
Whether or not the Commission will grant an extension of time is a question to be determined having regard to s.394(3) of the Act. Section 394(3) states:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.”
In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]).
On 6 November 2024, I issued directions for the filing of evidence and submissions. Pursuant to those directions, the matter was listed on 15 November 2024 for a mention hearing, during which I sought confirmation from the parties they were aware of the various filing dates, the hearing date, and the parties were given an opportunity to ask questions about what was required. An interpreter was made available for Ms Zhang, as was the case at the substantive hearing of the matter.
Ms Zhang did not file any witness statement or documentary material as such, although she did send some emails to chambers. On 17 November 2024, Ms Zhang sent an email to chambers raising various questions for the respondent and requesting answers to same. They primarily addressed her workplace grievances and the circumstances of her dismissal. Ms Zhang was told that I did not intend to order the respondent to answer and she was reminded to file her material for the extension of time application. Ms Zhang then sent in an email written in Mandarin, upon which she was told that if she wished to rely upon it a translated version would need to be provided. Ms Zhang subsequently sent a further email, the substantive parts are as follows:
“Your email has been received. Choosing unfair dismissal is not my first choice. I originally intended to be bullied in the workplace. It was your courier at that time who suggested me and told me the form to choose. It is also said that it will involve workplace bullying. Since my statement has exceeded the deadline. You don't want to let the other party bear the blame for this. Can I transfer my case to the relevant departments about workplace bullying? Because, I think they can't prove that everything they have done is not in accordance with the facts. I don't want to be entangled in such things as the expiration of the application. At that time, I was so seriously ill that I couldn't do anything. My gp, neurologist and neurologist hospital can prove that I caused personal injury because of workplace bullying (mainly the dismissal letter). The facts will eventually come to light. I don't care whether the other party answers my question or not. Fairness and law will restore the truth of the matter.”
Ms Zhang otherwise did not file any evidence. Her Form F2 stated (incorrectly) that her application was within 21 days of her dismissal, but otherwise shed little light on matters. For the section asking Ms Zhang to state why she considered the dismissal unfair, she wrote:
“Because I have been immigrating to Australia for 30yeas and have always been a taxpayer l abide by the law have worked in the company for 20 years al through l am the only Chinese. Try my best to help and colleague from in the corporate culture 20 years of hard work.was exchanged for always framed which is unfair to me. Didn’t do anything to harm the national society the company and employees who hurt me.this is not only unfair.but also deliberately hurting others damage to my mind, and I was in mental hospital for three weeks. Even thought about proving my innocence in extreme way”.
The Respondent, which was represented by Victorian Chamber of Commerce and Industry, filed submissions.
At the extension of time listing for 2 December 2024, Ms Zhang did not appear notwithstanding the directions, correspondence the week prior and notice of listing that had been issued. I briefly delayed the commencement of the hearing to make a further attempt to call and email Ms Zhang to join the hearing, without success. This decision is issued on the basis of the written material filed by the parties.
When did the dismissal take effect?
Ms Zhang’s Form F2 application states the dismissal took effect on 5 February 2024. The employer’s response states the dismissal took effect on 22 February 2024. While the difference is immaterial in the circumstances of the matter before me, I accept the employer’s position, which is also marginally more beneficial to the Applicant.
As the application was out of time, each of the matters in s 394(3) above must be considered in assessing whether there are exceptional circumstances.[1] I set out my consideration of each matter below.
Section 394(3)(a) - Reason for the delay
Ms Zhang’s material does not identify any particular reason for delay, although I infer from her material they are:
· Substantial psychological hardships, coupled with an inability to obtain timely psychological help, and
· Lack of awareness of rights.
I have considered Ms Zhang’s material. While I acknowledge the hardships and challenges she has presumably been dealing with since her dismissal, I do not consider that they rise to a level to adequately explain the delay in making the unfair dismissal application. Her material potentially indicates a period of time for delay might be explicable by her mental health challenges, though there was no medical evidence before me of those matters for any period of time, let alone the delay that ensued.
While I accept that Ms Zhang did not appear to have been specifically aware of the statutory time limits to make an application for an unfair dismissal remedy, it is well established that ignorance about such matters is not itself a matter supportive of a finding of exceptional circumstances. Mere ignorance of the statutory time limit is not an exceptional circumstance.[2] This is a circumstance shared by many applicants before the Fair Work Commission.
In summary, whether taken individually or collectively, I do not consider that the reasons provided by Ms Zhang are supportive of an overall conclusion of exceptional circumstances. They are matters which weigh against Ms Zhang’s application and, in light of the length of the delay, weigh heavily against her application.
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
Ms Zhang’s Form F2 states she was dismissed on 5 February 2024, and became aware of the dismissal on 22 February 2024. The Respondent in its Form F3 Response, and submissions, states Ms Zhang was dismissed on 22 February 2024. As set out above, I am satisfied that Ms Zhang was dismissed on 22 February 2024, and therefore Ms Zhang was aware of the immediate effect of her dismissal at the time. Therefore, she had the benefit of the full period of 21 days to lodge the unfair dismissal application.
I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[3]
Other than filing her unfair dismissal application, no matter was drawn to my attention of any relevance. I do not consider that this factor is supportive of a finding of exceptional circumstances, although I will treat this factor neutrally between the parties.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
The employer asserts in its submissions that it would be prejudiced by the delay. It did not, however, lead any evidence in support of that assertion.
It is difficult to conclude whether there would be prejudice to the employer or not. In part, the answer to that question depends upon how Ms Zhang would intend to run her unfair dismissal case. The material before me on that question is unclear.
Based upon those generalised allegations, it is quite possible that the employer would be required to put on evidence addressing nuanced and somewhat subjective assessments of events from close to a year ago. As a general proposition, I consider there is a real risk that one or more relevant witnesses will struggle to do so due to the period of time that has now passed, to the possible prejudice of the employer.
While I am unable to conclude whether there will be prejudice to the employer, I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(e) - What are the merits of the application?
On the limited material before me, it appears that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about specific incidents involving more than one witness.
It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[4] and the same applies to s 394(3)(e).
Notwithstanding those observations, the limited material proffered by the Applicant suggests her case may not be strong. In my view, these are matters that weigh against a finding of exceptional circumstances, although given the challenges Ms Zhang has with her written and oral English that may have precluded her better explaining her position, I will treat this factor neutrally between the parties.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
Neither party raised any relevant matter before me to indicate any issue of fairness between the Applicant and other persons in a similar position.
For the purpose of this application, I consider that this is a matter to be treated neutrally.
Are there exceptional circumstances?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[5] Exceptional circumstances may 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 can be considered exceptional.[6]
The absence of any satisfactory explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. [7]
I have set out my findings for each of the factors in s 394(3)(a) – (f) above.
When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[8] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
A. Zhang did not appear.
A. Zoch with T. Fuimaono-Page of Victorian Chambers of Commerce and Industry for the Respondent.
Hearing details:
2024.
Melbourne (by video link via Microsoft Teams):
December 2.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[4] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] PR781911
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