Angela Xiaojing Lu v DFS Australia Pty Limited
[2024] FWC 1505
•12 JUNE 2024
| [2024] FWC 1505 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Angela Xiaojing Lu
v
DFS Australia Pty Limited
(U2024/4881)
| DEPUTY PRESIDENT DEAN | CANBERRA, 12 JUNE 2024 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances.
Ms Angela Xiaojing Lu (Applicant) was employed with DFS Australia Pty Limited (Respondent) as a part-time Sales Associate until she resigned effective from 23 January 2024.
On 26 April 2024 the Applicant lodged an application pursuant to s 394 of the Fair Work Act 2009 for a remedy, alleging she was unfairly dismissed by the Respondent.
The Respondent objected to the application on two grounds, being that the application was made outside the statutory time limit and that the Applicant resigned voluntarily and was therefore not dismissed.
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The Applicant’s application was made some 73 days outside the 21 day period.
The Commission must first consider whether to grant a further period for the application to be made under s 394(3) prior to determining other jurisdictional objections[1].
The matter was listed for hearing by telephone on 11 June 2024. The Applicant appeared and gave evidence on her own behalf. DFS was represented with permission by Mr L Meagher of Counsel with Ms A Beal of Hicksons Lawyers. Ms S Hwang, Assistant HR Manager, gave evidence for the Respondent.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[2] 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.[3]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.
Reason for the delay
The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[4]
The Applicant sustained injuries after an attempted suicide and was hospitalised between 12 December 2023 and 5 January 2024. The Applicant gave evidence that she had suffered trauma and humiliation at the workplace which led her trying to take her own life. She submitted that the reason for the delay in filing the application was that it took her three months to completely recover from the injuries and that she continued to suffer from severe depression and anxiety. The Applicant said that she had a fall in May 2024 (after she had made this application) which also impacted on her mental health.
The Applicant provided medical certificates and evidence of attending follow-up medical appointments since her injuries in December 2023. In relation to the period between the date of her resignation and the date she made this application (23 January 2024 to 26 April 2024), a medical certificate was provided which stated that the Applicant had no capacity to work between 1 January and 5 April 2024. There is no medical evidence as to the Applicant’s capacity after 5 April 2024.
The Applicant gave evidence that she was assisted by her son and daughter in communicating with the Respondent whilst she was in hospital and her son tendered her resignation on her behalf. In cross examination, the Applicant confirmed that she made a workers compensation claim in March 2024, sent an email to the Respondent on 5 April 2024 seeking an employee separation certificate so as to make a job seeker application, and sought information from Legal Aid and Centrelink in April prior to making the present application.
Whilst I accept that the Applicant’s medical condition was significant immediately after her injuries in December 2023 and would have impacted her capacity in the weeks following, I am not satisfied that the Applicant has provided an adequate explanation for the whole period of the delay. I accept the Respondent’s submissions that the Applicant’s medical evidence does not support a finding that she was unable to file this application for the whole period from her resignation to 26 April 2024. In particular, the fact that the Applicant was able to engage in various activities between March and April 2024 which included seeking information from Legal Aid and Centrelink and lodging a workers compensation claim, indicate that she did have the capacity to make the unfair dismissal application during this period. Further, the Applicant had been assisted by her children and there is no evidence as to why the Applicant did not ask for their assistance to lodge this application at an earlier and timely date.
Having considered all of the circumstances, I am not satisfied that the Applicant has made out an acceptable explanation for the whole period of the delay. The absence of an acceptable explanation for the whole period of the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant confirmed during the hearing that she resigned on 23 January 2024 and therefore was aware that her employment ended on that day. This circumstance weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant gave evidence that she had sought advice from Legal Aid. The Applicant otherwise did not take any action to dispute the dismissal until the day the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I accept the delay is relatively lengthy. However, in the absence of any specific evidence as to what prejudice the Respondent may suffer, I consider this to be a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant claims that she had been suffering from bullying and harassment at the workplace and made a formal complaint on 25 October 2023. Following an investigation led by Ms Hwang, the Applicant was informed in a meeting on 20 November 2023 that her complaint was unsubstantiated. The outcome of the investigation was also confirmed in a letter dated 23 November 2024 from the Applicant’s manager in which, amongst other things, the Applicant was invited to raise concerns if she were to encounter any workplace issues in future.
The Respondent submits that the Applicant has not demonstrated that she was forced to resign due to conduct by the Respondent. It submits that the Applicant’s complaint was investigated in an appropriate manner and the Respondent did not engage in any conduct which forced the Applicant to resign. The Respondent argued that the Applicant was not left with no option but to resign as there were options which the Applicant could have taken such as applying to reopen or appeal the investigation process.
The merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. While it is not possible to make any firm or detailed assessment of the merits, it appears on the material that the Applicant would have difficulty in demonstrating that she was dismissed within the meaning of the Act. In the circumstances, I consider the merits of the Applicant’s case to be weak. On balance, this weighs against a conclusion that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
The Applicant asserts that a former co-worker who had a car accident was allowed one year to recover. I do not consider that the Applicant was in a similar position and I find this to be a neutral consideration.
Conclusion
It was obvious the Applicant was very upset about the circumstances leading to her resignation and considered she had been harshly and unfairly treated. However, I must consider and weigh each of the matters that I am required to take into account, and a determination that the circumstances for late lodgement of an application are exceptional is a high bar for any applicant.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
A Lu on her own behalf.
L Meagher of Counsel with A Beal for DFS Australia Pty Limited.
Hearing details:
2024.
By telephone:
June 11.
[1] See Herc v Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234.
[2] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[3] Ibid.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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