Ching-Yi Peng v PVH Brands Australia Pty Limited
[2023] FWC 2978
•21 NOVEMBER 2023
| [2023] FWC 2978 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ching-Yi Peng
v
PVH Brands Australia Pty Limited
(U2023/10330)
| COMMISSIONER WILSON | MELBOURNE, 21 NOVEMBER 2023 |
Application for an unfair dismissal remedy – application filed out of time – circumstances not exceptional – application dismissed.
This decision concerns an application made by Ms Ching-Yi Peng alleging unfair dismissal against PVH Brands Australia Pty Limited (PVH or the Respondent). Ms Peng’s employment ended on Wednesday, 12 July 2023. Ms Peng’s application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on Friday, 20 October 2023.
Section 394(2) of the Fair Work Act 2009 (the FW Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). From the dates referred to above, Ms Peng’s application was made 79 days outside of the statutory time limit which ended on Wednesday, 2 August 2023.
Consistent with the Commission’s usual practice on these matters, with the application having been made out of time, the matter was referred to me for hearing and determination of whether an additional period of time should be allowed for the making of Ms Peng’s application. PVH object to the proposition that the Commission should allow an extension of time for the filing of an unfair dismissal application.
The Respondent has made other objections to the application, including that Ms Peng’s employment does not meet the minimum employment period; and she was not a regular casual employee and had no reasonable expectation of ongoing employment on a regular and systematic basis. This decision is in relation to the extension of time matter only.
On Monday, 20 November 2023, a hearing was conducted in respect of a purported request to extend time for the filing of the application. Evidence was received from Ms Peng on her own behalf and the Respondent was represented by Ms Maggie Mackey, its Human Resources Manager.
In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied that there are exceptional circumstances to warrant the extension taking into account the criteria which are specified within s.394(3) of the FW Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion[1] and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle.[2]
I am satisfied on the material before me that, for the reasons set out below, there are not exceptional circumstances in Ms Peng’s case and that an extension of time should not be granted for the making of her unfair dismissal application.
BACKGROUND
Ms Peng was initially employed by the Respondent as a Christmas Sales Consultant casual from Saturday, 5 November 2022 to Saturday, 28 January 2023.[3] Her position title changed to Sales Consultant casual commencing Sunday, 29 January 2023.[4]
Ms Peng was employed on a casual basis and was located at the Calvin Klein Melbourne Central retail store.
LEGISLATION
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria.
Section 394(3) is in substantially the same terms as s.366(2) (save for the additional consideration in s.394(3)(b), which is absent from s.366(2)). The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd as follows:
“[13] 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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.” [5]
The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[6]
In considering whether an extension of time should be granted to Ms Peng, I am required to consider all of the criteria in s.394(3), which I now do.
1. The reason for the delay
The prima facie position is that the time limit prescribed by the FW Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[7] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.[8] An applicant does not “need to provide a credible explanation for the entire period”; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.[9] While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.[10]
In Ms Peng’s case the relevant period for consideration of an extension of time is that after the last day for a lodgement to be within time, namely Wednesday, 2 August 2023. Ms Peng’s explanation for her late lodgement of this matter is twofold, not being aware of the right to make an application and illness.
Firstly, Ms Peng submits the reason for delay as “I don’t know the website and have the right to say it.”[11]
The Respondent says that it provided Ms Peng with a copy of the Fair Work Information Statement and the Fair Work Casual Information Statement with her contract of employment and these documents provided links to the Fair Work Ombudsman and Fair Work Commission websites.[12]
Secondly, Ms Peng submits on the day prior to her dismissal she started experiencing symptoms of the flu and it took her three weeks to recover.[13] She says:
“I was also mentally preoccupied and couldn’t focus on the unfair treatment I received during my termination. The sudden nature of my job loss left me unable to apply for government assistance. It was only recently, when I secured a stable source of income and my health improved, that I had the time to consider pursuing my rights. Unfortunately, I’ve now learned that I have exceeded the deadline for making such claims.”[14]
Ms Peng has submitted a medical certificate stating she was unfit for work for the period 12 July 2023 to 14 July 2023 inclusive. A tax invoice for an emergency room visit on 17 July 2023 as well as a letter from an intern at The Royal Melbourne Hospital stating she will be absent from work from 16 July 2023 to 17 July 2023 inclusive was also submitted.
Ms Peng also gave evidence that she only learned of her right to make an unfair dismissal application after she had obtained and started a new job at the start of September, having learned about her rights from other employees at her new workplace.
In this case, I am not satisfied that there are exceptional circumstances to explain the delay in filing the application.
The statutory deadline requires active engagement with the making of an unfair dismissal application, personally or through one’s representative which in this jurisdiction does not have to be a lawyer, union or even paid agent. The lack of active engagement with the deadline, and a consequential late lodgement means an inevitable retrospective examination of an applicant’s circumstances to ascertain whether there was an acceptable explanation for the delay. Ignorance of the timeframe for lodgement is not an exceptional circumstance.[15] I am therefore not persuaded by Ms Peng’s first submission.
I also do not find that the evidence presented concerning Ms Peng’s illness provides a credible explanation for the period of delay. The delay in making the application is 79 days. The evidence provided demonstrates that Ms Peng was unfit for work for two short periods 12 July 2023 to 14 July 2023 inclusive and 16 July 2023 to 17 July 2023 inclusive. The two periods are cumulatively only 5 days and do not satisfactorily explain the reason Ms Peng’s application was late.
Accordingly, consideration of this criterion does not resolve in favour of Ms Peng for the granting of an extension of time for the making of her application.
2. Whether the person first became aware of the dismissal after it had taken effect
A termination of employment on the employer’s initiative does not take effect unless and until it is communicated to the employee whose employment is being terminated.[16] Ms Peng was notified of the dismissal by telephone call on 12 July 2023.[17]
As the termination of employment was communicated to Ms Peng on the same day it took effect, this factor weighs against an extension of time being granted for the making of the application.
3. Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[18]
The origins of the criterion in s.394(3)(c) may be gleaned from Marshall J’s judgement in Brodie-Hanns v MTV Publishing Ltd; “[a]ction taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time”[19] (underlining added).
Ms Peng submits that she provided additional information to the Respondent, firstly to the Store Manager and secondly to Ms Mackey, Human Resources Manager to explain her visa requirements and eligibility to work and that she did these things after she was dismissed. She says that she has not received any further communication since providing this information.[20] The last of these communications appears to have been sent from Ms Peng to Ms Mackey on 28 July 2023, which was still within the statutory filing period which ended on 2 August 2023. The last communication from Ms Mackey however appears to have been sent on 21 July 2023.
While these communications evidence that Ms Peng politely and respectfully challenged what she understood to be the reasons for her dismissal there was no meaningful reciprocation from the Respondent that would stand for a suggestion that it was considering her post-dismissal approach. Instead the email chain suggests Ms Mackey was not for moving when she replied to Ms Peng that “due to your visa restrictions you are unable to work for Calvin Klein as your visa requires you to work for a particular employer and/or undertake specific activities. These activities are not offered at PVH hence we are unable to continue your employment with us”.[21]
A finding on these matters that Ms Peng was being strung along by the former employer until the statutory time limit had passed is not available from the evidence before me. Further, there is no cogent evidence of a dispute on Ms Peng’s part continuing after the conclusion of the statutory time period and the date on which her application was lodged.
I consider this to be a neutral consideration.
4. Prejudice to the employer (including prejudice caused by the delay)
The delay in the filing of the application is 79 days. The Respondent does not claim that the delay in lodging the application caused it prejudice.
While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice.[22]
In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter is a neutral factor in my consideration.
5. The merits of the application
The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an applicant has a sufficient case on the merits, accepting that in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[23] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[24]
Ms Peng submits that on the day prior to her termination she was notified by the Store Manager that the company was experiencing financial constraints and as a result they could no longer provide the shift she was scheduled to work on 12 July 2023.[25] She says that she was then advised the following day that her employment was terminated due to her visa status.[26]
An email from the Respondent to Ms Peng advises:
“Unfortunately due to your visa restrictions you are unable to work for Calvin Klein as your visa requires you to work for a particular employer and/or undertake specific activities. These activities are not offered at PVH hence we are unable to continue your employment with us.”[27]
Ms Peng says that she did not receive any negative performance reviews during her employment with the Respondent and that there are others within the business who hold the same visa as her and who were able to work for the Respondent.
The Respondent submits that the contract of employment signed by Ms Peng states:
“The Offer of Employment in the attached contract (Contract) is conditional on:
a. You demonstrating as required by PVH Brands Australia Pty Limited (the Company) that you are eligible to work in Australia, by producing one of the following documents:…..a valid and current temporary visa permitting you to work in Australia and you continuing to meet all immigration requirements necessary to work in Australia….if your ineligibility to work changes during the course of your employment you must inform the Company immediately. Should you be ineligible to work in Australia, your employment will immediately cease from the date of such ineligibility without any liability to the Company for any payment or compensation to you.”
The Respondent says that when Ms Peng commenced employment she was on a TZ/417 temporary resident visa. Ms Peng then notified the Respondent on 15 July 2023 of an update to her visa:
“I am writing to address a recent realization regarding my visa situation, which unfortunately prevents me from working in CK”.[28]
Upon receiving this update, the Respondent requested Ms Peng provide a copy of her latest visa and the company completed another check with the Department of Home Affairs. The Respondent says that Ms Peng “was now on a GG/408 Australian government endorsed events visa, which included the proposer of the visa as UNIQLO Australia Pty Ltd.”[29]
The Respondent says that as a result of the conditions on Ms Peng’s visa she was unable to continue working at PVH Brands Australia Limited.
As a result, it is the case in this matter, as with most extension of time matters, that the uncertainties about each party’s case and each parties evidence on the merits is yet to be tested lead me to find that consideration of the merits of the case is a neutral factor in my consideration as to whether an extension of time should be granted for the making of Ms Peng’s unfair dismissal application.
6. Fairness as between the person and other persons in a similar position
This consideration is concerned with the consistent application of principles in applications of this kind, ensuring fairness between an applicant and other persons in a similar position, noting that applications for an extension of time generally turn on their own facts.[30] This may require consideration of applicants whose applications are either currently before the Commission, or have been decided in the past.[31] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[32]
No such factors are featured in this matter and so consideration of this criterion is also a neutral factor in my conclusion about exceptional circumstances.
CONCLUSION
Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am not satisfied there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Ms Peng.
As a result, Ms Peng’s application for unfair dismissal remedy must be dismissed, and an Order doing so is issued at the same time as this decision.
COMMISSIONER
Appearances:
Ms C. Peng for herself
Ms M. Mackey for the Respondent
Hearing details:
2023.
Melbourne (via video conference);
20 November.
[1] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [9].
[2] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288, [21].
[3] Details of position within Letter of Offer, appearing at Digital Court Book, p.18.
[4] Email to Ms Peng from Respondent, dated 8 February 2023, appearing at Digital Court Book, p.14.
[5] Nulty v Blue Star Group, 2011, 203 IR 1, [13].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[8] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [22].
[9] Ibid, [40].
[10] Ibid, [41].
[11] Form F2, Unfair Dismissal Application, 20 October 2023.
[12] Form F3, Response to Unfair Dismissal Application, 2 November 2023.
[13] Applicant Outline of Submissions: Extension of Time, filed 5 November 2023, appearing at Digital Court Book, p.58.
[14] Ibid.
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14].
[16] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496.
[17] Applicant Outline of Submissions: Extension of Time, filed 5 November 2023, appearing at Digital Court Book, p.57.
[18] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[19] Ibid.
[20] Applicant Outline of Submissions: Extension of Time, filed 5 November 2023, appearing at Digital Court Book, p.58.
[21] Email exchange between Ms Peng and Ms Mackey, appearing at Digital Court Book, pp.117-118.
[22] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
[23] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[24] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[25] Applicant Outline of Submissions: Extension of Time, filed 5 November 2023, appearing at Digital Court Book, p.59.
[26] Form F2, Unfair Dismissal Application, 20 October 2023.
[27] Email to Ms Peng from Respondent, dated 21 July 2023, appearing at Digital Court Book, p.13.
[28] Form F3, Response to Unfair Dismissal Application, 2 November 2023.
[29] Ibid.
[30] GHD Pty Ltd v Kevin Alan Black[2023] FWCFB 38, [94].
[31] Wilson v Woolworths [2010] FWA 2480, [24]-[29].
[32] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
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