Guanlun Wang v Adelaide Chinese News Pty Ltd T/A Adelaide Chinese News Pty Ltd

[2016] FWC 1400

[2016] FWC 1400

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Guanlun Wang
v
Adelaide Chinese News Pty Ltd T/A Adelaide Chinese News Pty Ltd
(U2015/15754)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 4 MARCH 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Wang has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Adelaide Chinese News Pty Ltd T/A Adelaide Chinese News (Adelaide Chinese News). Mr Wang’s application was lodged on his behalf by his lawyer, Ms Butler. On 4 March 2016 I advised that I considered that the application was lodged outside of the 21 day time limit specified in the FW Act and that I was not prepared to extend that time limit. These reasons for decision set out the position I adopted in this respect.

[2] Mr Wang’s application was lodged on 23 December 2015. In that application Mr Wang advised that he was not formally dismissed but was told not to return to work since July 2015 and, following substantial correspondence which did not clarify his employment status, he wrote to the employer on 22 December 2015 terminating his employment for reasons of constructive dismissal. The application confirmed that Mr Wang regarded the application as having been lodged within the 21 day time limit.

[3] The Employer’s Response to the application asserted that the termination of Mr Wang’s employment took effect on 16 July 2015. Accordingly, Adelaide Chinese News asserted that the application was lodged out of time. Adelaide Chinese News also asserted that it was a small business and that the termination of Mr Wang’s employment was consistent with the Small Business Fair Dismissal Code.

[4] On 4 January 2016 my Associate corresponded with both Mr Wang and Adelaide Chinese News and advised that the extension of time issue would be considered through a telephone conference on 4 March 2016. Substantial information about the extension of time issue was provided to the parties. Mr Wang was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 1 March 2016.

[5] Further information was received on behalf of Mr Wang on 1 March 2016. That advice detailed Mr Wang’s position with respect to his engagement and the suspension of his employment on 15 July 2015. Mr Wang detailed the various attempts he made, through his lawyer, to clarify his employment status but asserted that no meaningful response had been received. Mr Wang detailed other actions he had taken to recover payments he considered were due to him. He also referred to the extent to which he was engaged under a sub-class 457 visa and asserted that Adelaide Chinese News had not complied with its obligations pursuant to that arrangement. Mr Wang’s primary position was that the termination of his employment should be considered to have taken effect on 22 December 2015 such that no extension of time was required. In the alternative, he asserted that the uncertainty associated with the date upon which the termination of his employment took effect established an exceptional circumstance so as to warrant an extension of time.

[6] I note that, attached to the application were copies of correspondence between Mr Wang’s lawyer and the lawyers representing Adelaide Chinese News at that time. It is clear from that correspondence that Mr Wang was seeking confirmation of his employment standing. However, one particular letter assumes substantial significance. On 10 September 2015 Mr Phang, as the lawyer then acting for Adelaide Chinese News, responded to Ms Butler’s earlier correspondence about the allegations of misconduct with respect to Mr Wang. That letter concluded on the following basis:

“For his gross negligence, reckless acts, ignorance and serious misconduct your client was asked for explanation. He was suspended pending investigation of his explanation. However your client despite repeated reminders for explanation, he failed, ignored or refused to company with CAN’s request. Clause 7 says that if your client failed to comply with ACN’s policies may result in disciplinary action up to and including dismissal.

Accordingly your client was dismissed without notice or making payment in lieu of notice.

Your client new of his gross negligence, reckless acts, ignorance and serious misconduct, any profess of innocence would be a pretend.

Your client’s file in regard to his employment is closed.”

[7] On 3 March 2016 I was provided with an affidavit from Mr Hu, who was the General Manager of Adelaide Chinese News. I have taken this affidavit into account and note that it primarily refers to the allegations of misconduct made with respect to Mr Wang.

[8] Mr Wang participated in the telephone conference but was represented by Ms Butler, of counsel. Mr Hu from Adelaide Chinese News also participated in this conference but Adelaide Chinese News was represented by Mr Putland of counsel. Permission in both instances was granted pursuant to s.596(2)(a) and (c).

[9] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[10] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[11] In the conference, Ms Butler submitted that the termination of Mr Wang’s employment should be taken to be effective from 22 December 2015, such that the application was made within time. Notwithstanding the position put by Adelaide Chinese News that the termination of Mr Wang’s employment took effect on 17 July 2015, Adelaide Chinese News asserted that Mr Wang was clearly advised, through the 10 September 2015 correspondence, that he had been dismissed.

[12] I think there is some doubt about when Mr Wang was first made aware of the termination of his employment. I am not convinced that he was given that advice in July 2015. Mr Wang’s subsequent endeavours to establish his employment standing lend support to the proposition that he was not aware, in July or August, that he was dismissed. However, there can be no doubt that the correspondence of 10 September 2015 confirmed that Mr Wang was dismissed. I have also noted that Mr Wang was clearly aware of that correspondence on 15 September 2015. Further, that following discussions between Mr Wang and Ms Butler, Ms Butler wrote again to the Adelaide Chinese News legal representative on 30 October 2015 and that this correspondence fundamentally challenge the basis for that employment termination. It did not imply that there was doubt about the extent to which Adelaide Chinese News considered that Mr Wang had been dismissed.

[13] Consequently, on the information before me I have concluded that the termination of Mr Wang’s employment took effect, at the latest, on 10 September 2015 such that the application was made some 82 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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] Mr Wang’s reasons for the delay go to the extent to which he asserts that he was unaware that he had been dismissed. This is inconsistent with the letter of 10 September 2015 which was attached to his application. It is also inconsistent with the correspondence of 30 October 2015 sent on behalf of Mr Wang. Ms Butler confirmed that she had advised Mr Wang of the 21 day time limit on numerous occasions, both before and after receipt of the 10 September 2015 letter. Given that Mr Wang received, and understood the 10 September 2015 letter as confirming that he had been dismissed, I am not satisfied that his explanation for the delay satisfactorily explains the substantial time involved. Accordingly, I am not satisfied that Mr Wang has established that the reasons for the delay represent circumstances which should be regarded as realistic or exceptional for the purposes of an extension of time.

[15] I have accepted that, separate from the late lodgement of this application, Mr Wang pursued other actions so as to challenge his employment standing. These actions involved further correspondence sent on his behalf by Ms Butler.

[16] Adelaide Chinese News has asserted that the long delay in the lodgement of this application represents prejudice in that it has reduced the capacity for ready access to information which might otherwise have been available to it on its computer system. I have accepted this advice and have taken this likely prejudice into account.

[17] The limited material before me relative to the merits of the application does not enable a definite conclusion about the matter. Despite this, the material before me establishes some significant uncertainty about the basis upon which Mr Wang was dismissed and the process that was followed. I have formed the view that the matter may have merit, but I am unable to conclude that the merits of the matter represent an exceptional circumstance.

[18] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[19] Accordingly I have concluded that the material before me does not establish that Mr Wang’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR577639) giving effect to this decision will be issued.

Appearances (by telephone):

R Butler counsel for the applicant.

T Putland counsel for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

March 4.

 1   [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

<Price code C, PR577638>