Fei Gao v Harry Hoo Pty Ltd
[2024] FWC 1420
•30 MAY 2024
| [2024] FWC 1420 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fei Gao
v
Harry Hoo Pty Ltd
(U2024/5455)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 30 MAY 2024 |
Unfair dismissal application – whether to extend time – application dismissed
Fei Gao (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Section 394(2) requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant was dismissed by Harry Hoo Pty Ltd (respondent) on 15 March 2024. The 21-day period ended on 5 April 2024. The application was lodged on 14 May 2024, over a month out of time. In order for his application to proceed, the applicant requires an extension of time.
As I explained to the applicant in correspondence dated 27 May 2024, the Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’. Section 394(3) requires the Commission to take into account the following matters: 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.
As to the reason for delay (s 394(3)(a)), the applicant said that on 14 March 2023 he was told that the company had been placed into administration and that he was waiting for further information about the situation of the respondent, but did not receive any. The applicant said that he called ‘Fair Work’ for advice but he did not understand what was said to him because his English is not good. I appreciate that the applicant found his situation confusing. But advice and language assistance is available in the community. The termination letter that he received from the respondent clearly stated that his employment would end on 15 March 2024. It was lodged on 14 May 2024. I do not consider that the applicant’s circumstances prevented or seriously impeded the timely lodgement of his application. The reasons for the delay weigh against an extension of time.
As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following: the applicant does not claim to have become aware of the dismissal after it took effect; there is no indication that the applicant took other action to dispute the dismissal; there is no apparent prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people in a similar position. These are neutral matters.
As to the merits (s 394(3)(e)), the applicant stated in the application that the dismissal was unfair because it occurred without advance warning, he was unable to retrieve his personal belongings from his locker at the workplace, and he was not paid his termination entitlements. Based on the little information before me, I consider that the applicant has a reasonably arguable case, however overall I regard the merits as a neutral consideration.
The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.
Finally, it should be noted that this decision only concerns the applicant’s unfair dismissal application. It has not effect on any outstanding entitlements that are owed to him by the respondent, nor does it affect any rights he may have now or in the future to access the Fair Entitlements Guarantee.
DEPUTY PRESIDENT
Appearances:
Fai Gao for himself
No appearances for the respondent.
Hearing details:
2024
Melbourne (by telephone)
30 May
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