CCIG Investments Pty Ltd trading as Daydream Island Resort v Mrs Yanqing Li

[2024] FWC 1093

[2024] FWC 1093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

CCIG INVESTMENTS PTY LTD trading as Daydream Island Resort
v

Mrs Yanqing Li

(C2024/2431)

DEPUTY PRESIDENT WRIGHT SYDNEY, 26 APRIL 2024

Application to stay a decision [2024] FWC 799 of Commissioner Crawford at Sydney on 28 March 2024 in matter number C2024/481 - Application for a stay refused

Introduction

1. This is a stay application made by CCIG Investments Pty Ltd trading as Daydream Island Resort (CCIG) in connection with an appeal against a decision (the Decision),[1] by Commissioner Crawford issued on 28 March 2024.

1. The Decision was in relation to an application made by Mrs Yanqing Li on 25 January 2024, to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mrs Li’s allegations that she was dismissed from her employment with CCIG in contravention of Part 3-1 of the FW Act.

1. Section 366(1) requires such applications to be made either within 21 days after the dismissal took effect or such further period as the Commission allows under subsection (2).

1. Mrs Li was dismissed on the ground of redundancy on 13 October 2023. The application was required to be made by 3 November 2023 to be within the 21 day time limit prescribed by s.366(1). As the application was made after that date, the Commission was required to consider whether to extend the period for the application to be made under s. 366(2) of the FW Act before dealing with the matter.

1. Section 366(2) provides that the Commission may allow a further period to make an application if the Commission 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.

2. In the Decision, the Commissioner extended the period for the application to be made to 25 January 2024.

1. On 18 April 2024, CCIG appealed against the Decision pursuant to s. 604 of the FW Act. CCIG sought a stay of the whole of the Decision and noted that the matter is listed for Conference before the Commissioner on 26 April 2024.

1. I listed the stay application for hearing on 24 April 2024. Mrs Li advised that she wishes her matter to proceed which I took to mean that she opposes the grant of a stay. At the conclusion of the hearing, I advised the parties that I would not grant a stay. I now publish my reasons for that decision.

The Decision

1. Mrs Li initially filed an unfair dismissal application on 2 November 2023, which was within 21 days of the dismissal taking effect. Mrs Li discontinued that application during a conference with Deputy President Lake on 11 January 2024. Mrs Li then filed the general protections application on 25 January 2024.

1. In the Decision, the Commissioner considered each of the matters in s.366(2) to be neutral factors in relation to whether there were exceptional circumstances justifying an extension of time, apart from s.366(2)(b). In relation to this matter, the Commissioner considered Mrs Li’s action in filing an unfair dismissal application within 21 days of her dismissal taking effect weighed strongly in favour of granting an extension of time based on exceptional circumstances.

1. In relation to s.366(2)(a), the Commissioner noted that Mrs Li’s explanation for the delay for the period from 3 November 2023 up until 11 January 2024 was that Mrs Li was pursuing an unfair dismissal application rather than a general protections application. The Commissioner found that this was a satisfactory explanation for the delay until 11 January 2024. However, the Commissioner was not satisfied there was sufficient evidence to conclude that Mrs Li had a sufficient explanation for the delay from 11 January 2024 to 25 January 2024. Mrs Li claimed that during this period, she was travelling into remote China to visit a relative and did not take her laptop and further that she was struggling mentally at this time and the trip was intended to reduce her stress, which she considered to be the priority given she was pregnant.

1. The Commissioner found Mrs Li to be a credible witness and considered Mrs Li being self-represented and speaking English as a second language as factors likely to have contributed to the lack of evidence. Having regard to his findings that there was a satisfactory explanation for some but not the whole period of delay, the Commissioner decided to treat the reason for the delay as a neutral factor in his assessment of exceptional circumstances.

1. In relation to s. 366(2)(e), the Commissioner noted that there are numerous other cases where an extension of time has been granted because the applicant initially filed an application in either the unfair dismissal or general protections jurisdiction, which they discontinued then filed in the other jurisdiction. However, given that Mrs Li did not file a general protections application for two weeks after discontinuing her unfair dismissal application, the Commissioner considered this to be a neutral factor rather than a factor which favoured the extension.

1. In conclusion the Commissioner was satisfied that the filing of an unfair dismissal application within 21 days of the dismissal taking effect constitutes an exceptional circumstance, although he was not satisfied that Mrs Li had established with sufficient evidence

why there was a further delay from 11 January 2024 until 25 January 2024. The Commissioner also considered there would be an element of unfairness if Mrs Li lost the opportunity to contest her dismissal when it has been clear to CCIG since at least 15 November 2023 that this was Mrs Li’s intention.

Relevant Principles

1. Section 606(1) provides:

If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

1. It is well established that in determining whether to grant an application under s. 606(1), the Commission must be satisfied of two elements. The first of these is that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[2]

Is there an arguable case?

1. The Appeal is advanced by CCIG on the basis that the factors in s. 366(2)(a) and (e) weighed against the granting of an extension and that s.366(2)(b) was at best, a neutral consideration. As such, the Commissioner made a mistake in the application of the law when he granted Mrs Li additional time to commence her general protections application.

1. The grounds of appeal can be summarised as follows:

a.   The Commission’s decision to treat s.366(2)(a) as a neutral factor was not available as the Commission acknowledged that there was insufficient evidence to establish a satisfactory reason for the delay from 11 January 2024 to 25 January 2024. This finding alone must have weighed against the finding that there are exceptional circumstances to warrant the granting of an extension.

b. The ‘action’ for the purposes of s. 366(2)(b) is an action other than lodging the relevant application, therefore the Commission erred in finding that the filing of an unfair dismissal application within 21 days of the dismissal taking effect constitutes an exceptional circumstance.

c.   In relation to s.366(2)(e), the Commissioner failed to take into account relevant information and has therefore erred in finding that this would be a neutral factor. The information that the Commissioner failed to take into account was the lack of evidence supporting the existence of the medical conditions which Mrs Li relied upon to explain the delay from 11 January to 25 January 2024.

1. In determining whether there is an arguable case, with some reasonable prospect of success, I have had regard to the submissions made by CCIG at the hearing and the F7 – Notice of Appeal. Making this assessment necessarily involves forming a preliminary view as I do not have the benefit of the submissions which CCIG is likely to make at the hearing of the appeal.

1. The Commissioner was required to take into account each of the five matters referred to in s.366(2) in assessing whether there were exceptional circumstances. The Decision shows that he considered each of these matters with reference to the evidence and submissions that were relied upon by the parties.

1. In relation to s.366(2)(a), the Commissioner found that there was a satisfactory explanation for the delay until 11 January 2024 but not for the delay from 11 January 2024 to 25 January 2024. Although the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (Stogiannidis)[3]observed that the absence of any explanation for any part of the delay will usually weigh against an applicant in such an assessment,[4] they concluded that there is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances.[5] Stogiannidis does not support CCIG’s contention that the Commissioner’s finding there was insufficient evidence to establish a satisfactory reason for the delay from 11 January 2024 to 25 January 2024 alone weighed against the finding that there are exceptional circumstances to warrant the granting of an extension.

1. The thrust of CCIG’s complaint in relation to s.366(2)(b) appears to be that the Commissioner was not able to rely upon the filing of an unfair dismissal application within 21 days of the dismissal as ‘action taken by the person to dispute the dismissal’. The plain and ordinary meaning of the words in s.366(2)(b) do not support this contention. As noted in Stogiannidis, it is not for the Commission to impose an arbitrary limitation not expressed in the words of the Act.[6] There is simply no reasonable basis for CCIG to assert that the Commissioner erred in finding that this matter weighed in favour of a finding of exceptional circumstances.

1. In relation to s.366(2)(e), CCIG contended that the Commissioner failed to take into account the lack of evidence supporting the existence of the medical conditions which Mrs Li relied upon to explain the delay from 11 January to 25 January 2024. However, the Commissioner appeared to do just that by distinguishing Mrs Li’s case from other similar cases due to the two week delay between discontinuing the unfair dismissal application and in filing the general protections application.[7]

1. In relation to the contention that the Commissioner erred by determining that the matters in s.366(2)(a) and (e) were neutral rather than weighing against an extension of time, I am satisfied that this finding was available to the Commissioner given that there were factors identified in relation to each of these matters which both favoured and weighed against a finding of exceptional circumstances.

1. The errors particularised by CCIG in the Notice of Appeal and submissions during the hearing are not made out on the proper construction of s.366(2) and previous Full Bench decisions of this Commission. To the extent that CCIG alleges that the Decision is disharmonious with other recent decisions of the Commission dealing with similar matters, CCIG has selectively quoted from various decisions in the Notice of Appeal, all of which turn on the specific circumstances under consideration. The appeal does not appear to raise any legal or factual issue of significance or general application and the legal principles applied by the Commissioner in the Decision do not appear to be disharmonious when compared with other decisions.

1. Taking all of these matters into account, for the purpose of determining the stay application, I find that there is not an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal.

1. Having made this finding, it is not necessary for me to consider whether the balance of convenience weighs in favour of the order subject to appeal being stayed.

1. For the above reasons, the application for a stay order is refused.

DEPUTY PRESIDENT

Appearances:

Mr Marcus Taylor, Ms Julie Courtie and Ms Melissa Butters for the Appellant

Ms Yanqing Li for the Respondent

Hearing details:

2024
April 24
MS Teams

[1] [2024] FWC 799.

[2] Edghill v Kellow-Falkiner Motors Pty Ltd [2000] AIRC 785, Print S2639 at [5].

[3] [2018] FWCFB 901.

[4] Ibid, [39].

[5] Ibid, [44].

[6] Ibid, [42].

[7] [2024] FWC 799, [39]-[41].

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