Disha Luo v Majesty Properties Pty Ltd

[2024] FWC 1829

[2024] FWC 1829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Disha Luo
v

Majesty Properties Pty Ltd

(U2024/5946)

COMMISSIONER MCKINNON SYDNEY, 12 JULY 2024

Application for an unfair dismissal remedy – application filed out of time – whether an extension of time should be allowed

1. Ms Disha Luo was employed by Majesty Properties Pty Ltd from either 1 December 2015 or 1 July 2017 until 20 March 2024 or 3 April 2024. On 24 May 2024, Ms Luo applied for an unfair dismissal remedy. Although there is a dispute about when the alleged dismissal took effect, the dispute is not necessary to resolve. On either version of events, the application was filed more than 21 days after the dismissal took effect. The question is whether additional time should be allowed for Ms Luo to make the application to the Commission.

1. I have decided to extend the time for Ms Luo to make the application to 24 May 2024. These are my reasons.

Extension of time

1. Under s.394(2), additional time may be allowed to a person to make an unfair dismissal application if the Commission is satisfied that there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]:

“[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.”

1. A list of matters to be taken into account when deciding whether to grant additional time is prescribed by s.394(3) of the Act. These are:

·   the reason for the delay,

·   whether the person first became aware of the dismissal after it had taken effect,

·   any action taken by the person to dispute the dismissal,

·   prejudice to the employer (including prejudice caused by the delay),

·   the merits of the application, and

·   fairness as between the person and other persons in a similar position.

Relevant factors

1. Reason for delay: The reason given by Ms Luo for the late filing of her application is that she was undergoing an intensive period of treatment for cancer and suffered side effects from the treatment. Following medical tests that began on 20 March 2024, the intensive treatment period commenced in hospital on 25 March 2024 and ended on 16 May 2024. The reason for delay is supported by medical evidence and adequately explains the entire period of delay. It also meets the description of exceptional circumstances.

1. Whether the person first became aware of the dismissal after it had taken effect: Although Majesty Properties submits that Ms Luo’s employment came to an end by agreement on 20 March 2024, this is denied by Ms Luo. Ms Luo submits that she was never notified of her dismissal except that on 3 April 2024, she was asked to hand over her work on the company “WeChat” group chat.

1. Any action taken by the person to dispute the dismissal: Ms Luo made the application 8 days after the end of her intensive medical treatment, after calling the Commission for information about her situation.

1. Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to Majesty Properties if an extension of time is allowed to Ms Luo to make her application.

1. Merits of the application: It is too early to make any reasonable assessment of the merits of the case. There are jurisdictional issues including whether Ms Luo was dismissed, whether the dismissal was consistent with the Small Business Fair Dismissal Code and whether it was a case of genuine redundancy. The coherency of at least two of these jurisdictional objections being raised simultaneously is in question. On the face of the record, Ms Luo has at least an arguable case that she was unfairly dismissed.

1. Fairness as between the person and other persons in a similar position is not a relevant criterion in this case.

Conclusion

1. I find that there are exceptional circumstances in this case such as to permit additional time for Ms Luo to make the application and that on balance, the various mandatory considerations weigh either in favour, or do not weigh against, the extension of time being granted. Majesty Properties does not object to the extension of time being granted.

1. The time within which Ms Luo must apply to the Commission for an unfair dismissal remedy in relation to her employment with Majesty Properties is extended to 24 May 2024.

COMMISSIONER

Appearances:

D Luo on her own behalf.
R Lee of Raymond Lee & Co for the Respondent.

Hearing details:

2024.
Sydney (by video):
July 3.

[1] [2011] 203 IR 1 at [13].

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