Ao Duan v Oz Kingkong Fitness & Mr Yuanting Hua

[2021] FWC 6295

[2021] FWC 6295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ao Duan
v
Oz Kingkong Fitness & Mr Yuanting Hua

(C2021/6645)

DEPUTY PRESIDENT LAKE BRISBANE, 8 NOVEMBER 2021

Application to deal with contravention involving dismissal– application made outside of statutory time frame – application for extension of time dismissed.

[1] Ao Duan (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by OZ Kingkong Fitness (theRespondent).

[2] The Applicant commenced employment with the Respondent as a casual administrative assistant on 23 August 2021. It is uncontroversial that the Applicant was then notified of his dismissal, approximately one week later, on 31 August 2021.

[3] The question before me is whether an extension of time is required and, if so, whether such an extension should be granted. A hearing was held before me via Microsoft Teams on 28 August 2021, at which the Applicant appeared for himself and Henry Hua appeared for the Respondent.

Was the application lodged within time?

[4] Section 366(1) of the Act requires that an application to deal with contraventions involving dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

[5] It is uncontentious that the Commission received the Applicant’s F8 application on 28 September 2021. The Applicant accepted that this was seven days outside of the 21-day period prescribed by s.366(1) of the Act. Consequently, for the Applicant’s application to proceed, he must obtain an extension of time under s.366(2) of the Act. The Respondent opposes the granting of such an extension.

Should a further period be granted?

[6] Section 366(2) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[7] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australiastated that:

“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. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. 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.” 2

[8] Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.366(2) of the Act.

[9] The Applicant’s submissions may be summarised as follows. The Applicant attempted to seek legal aid in early September but was unsuccessful due to a lack of availability. On 7 September 2021, the Applicant made contact with JobWatch who advised him to make a general protections application instead of an unfair dismissal application. The Applicant commenced a new job on 13 September 2021 and consequently became very busy. At around this time, he also contacted the Legal Institute of Victoria for assistance. On 20 September 2021, being the last day of the 21-day statutory timeframe, the Applicant stated that he sought advice from a law firm regarding the F8. The Applicant’s evidence was that due to personal circumstances the lawyer was unable to provide the Applicant with further assistance the following day.

[10] The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that the Applicant had adequate time to lodge the application. On 7 September 2021, the Applicant made contact with JobWatch and became aware that he could file a General Protections Application and therefore should have known that the 21-day time limit applied. In any case, the Respondent’s view was that the Applicant had done thorough research about the how to make an application in the Commission immediately following his dismissal and he delay was caused by the Applicant’s personal circumstances which were not exceptional.

Consideration

Reason for the delay (s.366(2)(a))

[11] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

“The absence of any 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, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” 5

[12] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the reasons proffered for the delay is an acceptable or credible explanation. 6

[13] While I accept the Applicant made several unsuccessful attempts to obtain legal advice was busy after commencing a new job on 13 September 2021, I do not accept the any of the reasons put forward by the Applicant qualify as “exceptional”.

[14] It was the Applicant’s choice to seek to have a representative or solicitor assist him. General protections applications can be made without the assistance of a lawyer. From as early as 7 September 2021, when the Applicant received advice from JobWatch, he understood that he could file a general protections application. The Applicant had sufficient time and opportunity to file the F8 application within the statutory period but failed to do so. This factor weighs against the granting of an extension.

Action taken to dispute the dismissal (s.366(2)(b))

[15] The Applicant immediately disputed his dismissal with the Respondent. The Respondent’s evidence is that upon learning about his dismissal, the Applicant threatened to “make trouble” for the company and make Mr Hua’s life difficult. He made it clear to Mr Hua that he intended to initiate legal proceedings shortly after his termination. I consider this factor to be neutral.

Prejudice to the employer (s.366(2)(c))

[16] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 7 I consider this factor to be neutral.

Merits of the Application (s.366(2)(d))

[17] In Kornicki v Telstra-Network Technology Group, the Commission considered the

principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the

Workplace Relations Act 1996 (Cth). 8 In that case, the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”  9

[18] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’ 10 Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[19] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 11 The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[20] Having regard to all the matters that I am required to consider under s.366(2) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[21] Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735598>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 2   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 [13] cited with approval in Tamu v Australia for UNHCR [2019] FWCFB 2384 [19].

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 at [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 at [16].

 5   [2018] FWCFB 901 [39].

 6   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 8   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Ibid.

 10   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 11   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].