Chris Yu v Karara Mining Limited

[2015] FWC 1639

[2015] FWC 1639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chris Yu
v
Karara Mining Limited
(U2014/15748)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Chris Yu alleged that the termination of his employment by Karara Mining Limited on 27 October 2014 was unfair.

[2] His unfair dismissal application lodged on 7 December 2014 was not made within 21 days of the date of the dismissal.

[3] On 8 December 2014, Mr Yu was advised that his application had not been filed within 21 days and he was further advised that to be granted an extension of time the Fair Work Commission needed to be satisfied that there were exceptional circumstances. That correspondence advised Mr Yu of the criteria considered by the Commission in deciding if exceptional circumstances exist.

[4] Karara Mining Limited filed a response to Mr Yu’s claim. Karara Mining Limited alleged that Mr Yu was not dismissed and attached a deed of release signed by Mr Yu on 29 October 2014. In that deed, the parties agreed that the employment would end on 27 October 2014. Further, Mr Yu released Karara Mining Limited from any claim arsing out the termination of his employment.

[5] On 21 January 2015, further correspondence was sent to Mr Yu. In addition to the issue of an extension of time, I drew Mr Yu’s attention to the deed of release and the decision of the Federal Court in Australian Postal Corporation v Gorman. 1 Mr Yu was provided with 14 days to make submissions in relation to the extension of time application and in relation to the deed of release. Mr Yu did not respond to that correspondence and a further email was sent to him on 19 February 2015 giving him until 26 February 2015 to respond. Mr Yu was advised that if there was no response, his application would be dismissed. Mr Yu did not respond.

[6] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Are there exceptional circumstances?

(a) the reason for the delay;

[7] Mr Yu said that he did not know that the Commission could help employees such as himself. It is not unusual for employees to be unaware of their unfair dismissal rights. There is no material before me which shows any steps taken by Mr Yu to find out about his rights. Mr Yu’s reason for the delay does not weigh in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[8] Mr Yu said he refused to sign the deed on 27 October 2014 but he did so on 29 October 2014 because of the stress to his family. Mr Yu had the full 21 days to lodge his application. This weighs against the granting of an extension of time.

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

[9] Mr Yu does not describe any steps he took to dispute the dismissal. This weighs against the granting of an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[10] There is no submission of any prejudice to Karara Mining Limited. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[11] Karara Mining Limited has provided a copy of a deed of release signed by Mr Yu. It is clear from Mr Yu’s material that he was not required to sign the deed on the day it was presented to him. He was given an opportunity to consider the deed and he signed it on 29 October 2014. Karara Mining Limited has paid Mr Yu the monies payable under the deed. The deed is a complete answer to Mr Yu’s claim. Even accepting that Mr Yu signed the deed to avoid further stress to his family, this does not negate the import of the deed. Mr Yu’s claim has no reasonable prospects of success and this weighs against granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[12] No submissions were made on this criterion.

Conclusion

[13] There are no exceptional circumstances warranting granting Mr Yu an extension of time to lodge his application. He has not provided a reasonable explanation for the delay and given the signed deed of release his claim is bound to fail.

DEPUTY PRESIDENT

<Price code A, PR561820>

 1 [2011] FCA 975

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