Hanran Liang v H'Var Steel Services

[2016] FWC 8671

[2016] FWC 8671

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hanran Liang
v
H’VAR Steel Services
(U2016/8926)

Xianghua Zeng
v
H’VAR Steel Services
(U2016/8927)

COMMISSIONER BISSETT MELBOURNE, 5 DECEMBER 2016

Application for relief from unfair dismissal - jurisdictional objection – extension of time –application granted.

[1] Applications have been made by Mr Hanran Liang and Mr Xianghua (David) Zeng (the Applicants) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Each was employed by H’VAR Steel Services (the Respondent).

[2] The Applicants claim that they were dismissed from their employment with the Respondent. They say that they became aware of this dismissal on 4 August 2016.

[3] The Respondent says it did not dismiss the Applicants but rather they abandoned their employment. If, in the alternative, it is found that the Respondent did dismiss the Applicants it says that their application for relief from unfair dismissal were made outside the 21 date time limit allowed for under the Act and there are no exceptional circumstances such that the Fair Work Commission (the Commission) should grant an extension of time within which the applications can be made.

[4] The circumstances of each case are the same. The parties agreed that they should be heard together.

Background

[5] Mr Liang commenced employment with the Respondent on 19 October 2007. He does not read or speak English.

[6] Mr Zeng commenced employment with the Respondent on 31 October 2011 although had worked for the Respondent previously. He does not speak ‘good’ English but can read some basic English.

[7] In early May 2016 the Applicants, along with the rest of the workforce, were presented with new employment contracts by the Respondent. The contracts sought to reduce the Applicants’ rate of pay. The Applicants’ evidence is that contents of the new contract were explained to them by the Respondent’s interpreter, Steven. Neither of the Applicants signed the new contract. All other workers apparently did sign the new contracts.

[8] On 31 May 2016 the Respondent’s interpreter sent a text message to the Applicants. In that text the Applicants say they were told that, unless they signed the new contract, they were not to attend for work the following day. The interpreter sent a text message to Mr Anthony Jerkovich, of the Respondent, that day in which he said ‘Hi Anthony I have informed Hanran [Liang] and David Zeng no need to go to work tomorrow and followed by text in Chinese as well.’ 1

[9] Neither of the Applicants attended for work the next day and have not attended for work since.

[10] On 7 June 2016 the Respondent wrote to the Applicants. The letters read:

We note that you have been absent from work since 01/06/2016. This absence has been without explanation or authorisation.

Absence from work without explanation or authorisation is very serious.

Your contract of employment requires you to attend work and perform services as agreed. In failing to attend work you are indicating that you wish to end your employment contract. However, prior to accepting your absence as an act to terminate the employment contract, we wish to give you the opportunity to explain your failure to attend work since 1/6/2016. In that regards, please contact the writer on 9236 2600 by 10/06/2016.

Should you fail to contact the write by 10/06/2016, we will conclude that you’re explained and unauthorised absence from work is an act by you to terminate your employment contract.

We may accept this and you will cease to be employed by the company. 2 [sic]

[11] The letter to Mr Liang was sent to his home address but he says he did not receive it.

[12] The letter to Mr Zeng was sent to an incorrect home address. It was also emailed to him but he says he never received the email.

[13] On 10 June 2016 Mr Ryan Ou, an organiser with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), sent an email to Mr Jerkovich in relation to the Applicants. That email said, in part:

I am writing in reference to your Common Law Contracts (CLC) that you presented to your existing employees of H’var Steel.

These employees are covered by an existing CLC and therefore are afforded the right to either accept or reject the new CLC without threats to their employment status.

Standing them down for not signing is illegal…

AMWU seeks that these employees be advised back to work and loss of wages be reimbursed...

We anticipate your earliest reply… 3

[14] Mr Jerkovich replied to Mr Ou on 13 June 2016 by email and said he ‘would look into this and come back to you’. 4

[15] On 13 June 2016 the Respondent again wrote to the Applicants. That letter read:

We refer to our letter of 07/06/2016 (Copy enclosed).

You have been absent from the workplace since 1/6/2016.

This absence has been without explanation or authorisation. Due to your failure either personally or through authorised representative to contact Anthony, we can choose to accept your unexplained and unauthorised absence from work as an act by you to terminate your employment contract.

Should we not hear from you personally or through an authorised representative by 17/06/2016, we will accept your absence as an act to terminate your employment contract. 5

[16] Again, Mr Laing says he did not receive the letter by post and Mr Zeng says he did not receive an email.

[17] On 5 July 2016 Mr Zeng and Mr Liang made applications to the Western Australian Industrial Relations Commission (WAIRC) in relation to ‘denied contractual benefits’ – in effect each was seeking payment for periods worked and not paid for and for the period they had been denied work by the Respondent.

[18] On 3 August 2016 the Respondent filed a response to the claims. The response to each claim stated, in part:

The respondent denies the applicant’s claim that he was entitled to payment for work from 1 June 2016…because the applicant last worked on 30 May and thereafter abandoned his employment without providing any notice… 6

[19] This response was served on the Applicant’s lawyer on 4 August 2016. 7

[20] On 18 August 2016 the Applicants filed in the Commission seeking relief from unfair dismissal.

Evidence

Mr Liang

[21] Mr Liang says he was given a new contract to sign on 18 May 2016. It contained a decrease in wages. He last worked on 31 May 2016 when he received a text message in Chinese from the interpreter telling him not to come to work the next day.

[22] He says that on 1 June 2016 he spoke to his supervisor (who speaks Chinese) to ask what was happening but says that the supervisor said the employer did not give an answer. 8 He says he received a message on 6 June 2016 inviting him (and Mr Zeng) to return to work to sign the new contract. He says he did not respond to this because he did not want to sign the contract.

[23] Mr Liang says he contacted his supervisor again on 2 June 2016 and asked what was happening with work, to which the supervisor said ‘I don’t know’. 9 He says he understood that if he would not sign the new contract he was not to return to work.

[24] Mr Liang requested his group certificate in July 2016. He says that he attended the workplace and was given the certificate by Mrs Jerkovich. He did not ask when he should return to work when he collected the certificate as he does not speak English.

[25] Mr Liang said he has had no further contact with the Respondent as he was waiting for an instruction to return to work.

[26] Mr Liang denied he had a discussion with Mr Jerkovich about his pay recently and says that, when he had a conversation with Mr Jerkovich some time ago about annual leave there was an interpreter present at that discussion.

[27] Mr Liang says that he received a text message sent by the Respondent on 6 June 2016 but then he did not hear from Mr Jerkovich. He says the Mr Jerkovich’s wife did not try and contact him by phone.

[28] Mr Liang met with the AMWU who he says then met with the employer who, Mr Liang understood, was going to make a decision but he never heard from the Respondent.

[29] Mr Liang says he made an application for relief from unfair dismissal as there was no clarity with respect to his employment. He says he does not know why the application was lodged on 18 August 2016 because he just received advice that the union was looking after it.

[30] Mr Liang said that he and Mr Zeng discussed the matter whenever they met up.

Mr Zeng

[31] Mr Zeng says that on 18 May 2016 the Respondent provided a new contract that had a reduction in his wages. He says there was an interpreter present in the discussions about the new contract.

[32] He says that he last worked on 31 May 2016 and did not work on 1 June 2016 because he received a text message from the interpreter not to come to work on that day. He says he did not return to work on 2 June 2016 because he did not get a clear answer from the supervisor ‘we’ contacted on 1 June 2016. 10

[33] When asked why he did not return to work on 2 June 2016 when the text message of 31 May 2016 only said to stay home tomorrow he said he still required ‘a clear indication from the employer whether I need to come to work after that date.’ 11

[34] Mr Zeng says that he needed a clear indication from the Respondent after 2 June 2016 as to whether he should return to work. He says he received no instruction to return to work. 12

[35] He says that on 7 June 2016 he contacted the union. He understood the union would meet with the Respondent on 10 June 2016. He says that after then he did not receive clear instructions.

[36] He says that the text message he sent on 30 May 2016 that starts ‘hello boss’ was composed by his son after he told him in Chinese what he wanted to stay. The message for the Respondent that says ‘I will contact you tomorrow…’ 13 he could read because he understands some basic English and he looked words up in the dictionary. Mr Zeng’s son is in year 8 and understands some English.

[37] Mr Zeng agreed that he received his payslips and group certificate by email but says he did not receive any of the letters the Respondent says it sent to him after 1 June 2016. He says he did not tell the Respondent of his change of address as his pay goes straight into the bank and his payslip is emailed to him.

[38] Mr Zeng says he does not know if he was dismissed.

Mr Ryan Ou

[39] Mr Ou’s evidence is that on 10 June 2016 the Applicants came to see him in his office. After hearing from them he then sent an email to Mr Jerkovich who responded saying he would look into the matter.

[40] On 17 June 2016 he says he rang Mr Jerkovich and a woman said she would get him to call back but he never did. 14

[41] Around 10 July 2016 he says there was a discussion with the relevant industrial officer from the AMWU and Mr Cory Fogliani a lawyer at W.G. McNally Jones Staff about what claims should be made for the Applicants. The discussion covered action to recover money owing form the Respondent and possible dismissal action. 15

[42] Mr Ou says he has been an organiser for about four years. He says that he visits the Respondent’s workplace a couple of times a year and otherwise members contact him if there are problems. He says he normally gives Mr Jerkovich a call and they sought out the problem.

[43] He says that the Applicants told him they had received contracts they did not want to sign. They did not advise him of any other correspondence they had received or any phone calls they received from the Respondent.
[44] Mr Ou does not know why it took from 5 July 2016 to 18 August 2016 to make an application for unfair dismissal expect that he understood the Applicants were still employed by the Respondent.

Mr Cory Fogliani

[45] Mr Fogliani is a lawyer at W.G. McNally Jones Staff Lawyers. His evidence is that the AMWU came to him for advice in relation to the Applicants returning to work.

[46] He says that he was advised by the Applicants that they had been offered new contracts, that these contracts reduced their pay, they did not want to take the pay cut so refused to sign the contracts and were told by the interpreter that unless they did sign the contract not to come to work. He says he understood that the reason the Applicants were sent home by the Respondent was that they had not signed the contract and until they did they should not return.

[47] Mr Fogliani said that on 7 July 2016 he lodged applications for the Applicants for a denial of contractual benefits in the WAIRC. 16 Following this he says he received correspondence from the Respondent’s lawyer on 4 August 2016 which indicated that the employment of the Applicants had come to an end because they had abandoned their employment.17

[48] Mr Fogliani says that there was no documentation to indicate that employment had ceased. The Applicants were not paid out any outstanding annual or long service leave, they did not receive a final payslip detailing their final pays and they did not receive a separation certificate. He says he was satisfied that there was no dismissal because of the absence of these things that would otherwise indicate the end of employment. He says that if he had understood that there had been a dismissal he would have made an application for unfair dismissal. Because he did not understand that the employment of the Applicants had been terminated he continued to pursue their contractual rights in the WAIRC.

[49] Mr Fogliani says that he was not aware of the letters sent to the Applicants from the Respondent until after the applications for unfair dismissal were made. Further, he says that he had Mr Zeng’s emails searched and there was no record of the letters from the Respondent being received by email.

[50] Mr Fogliani says that the termination of employment was not communicated until 4 August 2016. For this reason the application for unfair dismissal was not filed late as it was filed within 21 days of this date. He says that once he became aware of the claim of abandonment he had discussions with the AMWU. On 17 August 2016 it was decided to make claims for unfair dismissal and these were made the following day.

[51] Mr Fogliani says that, throughout his meetings with the Applicants and conciliation, their story as to why they had remained at home and the contact they did or did not have with the Respondent has been consistent.

Mr Anthony Jerkovich

[52] Mr Jerkovich gave evidence that he has had discussions with the Applicants with and without an interpreter prior to this dispute. He further said:

If I felt that the communication - the line of communication that we were discussing with them wasn’t getting through, that they weren’t understanding correctly then we would involve an interpreter to make sure they’re understanding or if they were certain concerns that they had then we would involve an interpreter. 18

[53] He says that he did not personally address or send the letters or emails to the Applicants but is satisfied that they were sent. 19

[54] He did not respond to the email from Mr Ou because he thought he could deal with the employees directly.

[55] Mr Jerkovich said that on 30 May 2016 he received a text message from Mr Zeng 20 in relation to wages owing21 but was not sure if he owed him any unpaid wages. He investigated and paid money owing.

[56] He says that Mr Zeng did not reply to the text message he sent in reply. 22

[57] Mr Jerkovich said he did not send any text messages to Mr Zeng after 2 June 2016 because he normally communicated with the Applicants in person and ‘they would come to my office and speak to me as they had done in the past if they’ve a problem.’ 23 Mr Jerkovich did, however, agree that a text message was a reliable way of communicating with the Applicants but did not send a text after 2 June 2016.

[58] Mr Jerkovich said that he instructed the Applicants on 31 May 2016 to remain at home as he was frustrated that they would not sign the contracts and he needed time to work out what to do. He said he was not shocked that they did not return to work because he assumed they were not happy with the contract so chose not to return. He says that he considered that their employment had ended after 17 June 2016 but agrees he has not paid final entitlements.

[59] Mr Jerkovich agreed that Steven, the interpreter, was not called as a witness so it is not possible to know for sure what he said to the Applicants.

[60] Mr Jerkovich agreed that Mrs Jerkovich was not called as a witness. He said he did not see her make the calls he believes she made, he is not aware if she had an interpreter present and he does not know if she left any message.

Submissions

Applicants

[61] The Applicants submit that there is no reason the Commission cannot rely on their evidence and, given the language barriers (all of the evidence of the Applicants was given through an interpreter) should be cautious in making any finding that they were evasive in their evidence.

[62] They submit that they acted in a manner consistent with a belief that they remained employed by the Respondent. 24 Further, they say that there is no evidence that they actually received the letters the Respondent says it sent either by post or by email. Further, Mr Ou, from the AMWU, understood, on the basis of his discussions with the Applicants, that they continued to be employed by the Respondent and they wanted to return to work.

[63] The Applicants had consistently maintained that they were waiting instructions from the Respondent as to their return to work. Mr Liang had contacted the Respondent and spoke to his supervisor to try and find out what was happening but received no response.

[64] The Applicants submit that I should draw an adverse inference from the failure of the Respondent to call Mrs Jerkovich as a witness as she is the person who is said to have posted the letters, sent the emails and tried to telephone the Applicants. She was not called and, in those circumstances, they say that it is reasonable for the Commission to conclude that her evidence would not have assisted the Respondent’s case.

[65] The Applicants submit that a dismissal cannot take effect until after it is communicated to the employee. 25 It says that the dismissals were communicated on 4 August 2016 when the Respondent filed its response to its claims in the WAIRC.

[66] If the applications were made outside the statutory time limit for making an application for unfair dismissal the Applicants say that there are exceptional circumstances such that an extension of time should be granted. Those circumstances are:

● They remained at home because they understood they were required to until they agreed to sign the new contracts;

● Mr Liang speaks no English and Mr Zeng speaks very little English which frustrated their ability to communicate. They asked Mr Ou to intervene on their behalf;

● The Respondent did not communicate with them or Mr Ou that it wanted them to return to work nor ask why they were not at work;

● They made application to the WAIRC for payment of wages whilst they were at home on the Respondent’s instruction. Despite receiving this claim on 5 July 2016 the Respondent did nothing to disabuse them of their view that they were still employed. The first time this was done was when the Respondent filed its response to the claim on 4 August 2016;

● The Respondent has not paid them any final entitlements, issued them with a final payslip or provided a separation certificate which made them believe they were still employed.

[67] The Applicants say that they took active steps to dispute their dismissal and general employment situation. They contacted their union and spoke to a lawyer who then took actions to recover money they believed was owed and who lodged applications for unfair dismissal once the dismissal became apparent.

[68] The Applicants say that no prejudice to the Respondent has been articulated.
[69] The Applicants say that there is merit to their claim for unfair dismissal on the basis that:

● There was no valid reason for their dismissal as they did not turn up for work on instruction of the Respondent;

● The Respondent did not notify them of the reason for dismissal;

● They were not given an opportunity to respond to the reason for dismissal;

● The language barrier and depressed employment market for metal fabricators and boilermakers in WA means they will have difficulty in obtaining employment.

Respondent
[70] The Respondent submits that there are two issues relevant to the matter before the Commission. The first is if an extension of time should be granted within which the Applicants can make their application for unfair dismissal. On this issue it says that the employment ended on 17 June 2016. On this basis the applications were made 62 days after this date and therefore 41 days late. Second, it says that, in any event, the employment was not terminated at the initiative of the Respondent but rather that the Applicants abandoned their employment.

[71] In relation to the extension of time, the Respondent submits that there must be an acceptable reason for the delay and the entire period of the delay must be explained.

[72] The Respondent says that I can be confident that the letters of 7 June 2016 and 13 June 2016 were sent and that they were received by Mr Liang. 26 Further, it submits that I can be confident that the email of the letters were sent and that they were received by Mr Zeng.27

[73] For this reason it says that the Applicants were aware 62 days before they made their applications for unfair dismissal that their employment had ended.

[74] Alternatively the Respondent submits that if I find that the Applicants were not aware until 4 August 2016 that their employment had ended, they knew at this time that the employment had ended in mid-June but there is no explanation as to why it took until 18 August 2016 to make the applications for unfair dismissal.

[75] In relation to whether the Applicants were dismissed or not the Respondent says that each was sent a letter of 7 June 2016 requesting contact by 10 June 2016. They failed to do so and a final letter was then sent of 13 June 2016.

[76] The Respondent says that the decision in Ayub v NSW Trains 28 (Ayub) as relied on by the Applicants can be distinguished from this matter as it related to a termination of employment at the initiative of the employer where this matter relates to abandonment.

[77] Alternatively, the Respondent says that, under the provisions of the Manufacturing and Associated Industries and Occupations Award 2010 29(Award), an employee who fails to attend to work and, within 14 days of the last attendance or approved leave, has not satisfied the employer that they are absent with reasonable cause, will be deemed to have abandoned their employment. In such circumstance, abandonment operates from the last day of work or last day or approved absence, whichever is greater.

[78] The Respondent says that the Applicants failed to respond to letters and phone calls and have never returned to work. They were aware that their employment had ceased when the decided not to return to work. There is no evidence that the Respondent intended that the employment relationship should end. 30 The decision not to attend work was a decision made by the Applicants who were told to remain at home on 1 June 2016.

[79] The Respondent submits that I can find that there was not a dismissal at the initiative of the employer because there is no evidence that it did anything designed to bring the employment to an end.

Legislation

[80] Section 394 of the Act states:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[81] Section 396 of the FW Act sets out those matters that must be determined in relation to an application for unfair dismissal prior to the merits of the matter being considered. One of these matters is if the application was made within the requisite time allowed for in the FW Act. The matters do not include if the applicant for unfair dismissal has been dismissed or not.

[82] Having determined those matters in s.396 of the FW Act, the Commission can then determine, in accordance with s.385 of the FW Act, if the applicant was unfairly dismissed. This requires a consideration of whether the applicant has, in fact, been dismissed (s.385(a)).

[83] In order to determine if an extension of time should be granted, I have, therefore, assumed that there was termination of employment. This assumption is not a finding of fact and whether or not there was a dismissal is yet to be resolved. That becomes a matter for resolution only if any necessary extension of time has been granted. This sequencing reflects the directions issued to the parties which required that they file materials in relation to the extension of time.

Reason for the delay

[84] The Applicants say that there was no delay in making the application once they were advised of the dismissal whilst the Respondent says no reason has been given for the delay.

[85] It is trite to say that it is difficult for an employee, having been dismissed, to make an application for unfair dismissal within the prescribed time limits in the FW Act if the fact of the dismissal has not been communicated.

[86] I am satisfied that Mr Liang and Mr Zeng were not aware, prior to 4 August 2016, that the Respondent considered that they had abandoned their employment. This is because the Respondent, firstly, communicated to the Applicants in writing and in English despite being aware of the need to ensure that the Applicants understood important information being relayed to them and engaged an interpreter for this purpose in the past, and despite Mr Jerkovich’s acknowledgement that he primarily dealt with the Applicants in person. Even if the Applicants received the letters of 7 and 13 June 2016 there is no evidence that they read and understood them such that it could be assumed that they were aware of the actions taken by Mr Jerkovich. It is not disputed that Mr Liang and Mr Zeng have severely limited English language skills and whilst Mr Zeng has a child in year 8 who speaks some English, it was not put that his son should have been able to interpret the letter sent to him by email. Further, there is no evidence that the email sent to Mr Zeng contained any attachment or that the email was received. There is no evidence that the second letter was sent to Mr Zeng by email. The postal address for Mr Zeng was wrong.

[87] Second, Mrs Jerkovich was not called as a witness, which casts some doubt as to the mailing of the letters, the sending of the emails and the phone calls. Whilst I accept that Mr Jerkovich is confident that what his wife said was true, her evidence could not be tested. I also accept that the documents produced by the Respondent do not provide evidence that an attachment was sent with the email to Mr Zeng on 7 June 2016 and there is no evidence that the 13 June 2016 letter was emailed at all. Third, the letters were sent by ordinary post such that, whilst it might be assumed they were delivered, there is no evidence to support this.

[88] I am satisfied that part of the reason for the delay, if there was one, was the decision of Mr Jerkovich to communicate with the Applicants in writing and in English. He used an interpreter to tell them to stay at home, presumably because he thought it important they understand that direction, but did not think to use an interpreter to tell them to return to work or to translate the letters sent.

[89] Mr Fogliani says that, having become aware of the alleged abandonment claim, he did not take action to make applications for unfair dismissal until 18 August 2016 because he was not aware of the letters the Respondent says it did send to the Applicants in June 2016 and because there was no communication to the Applicants that their employment had ceased. His evidence is that, within two weeks of becoming aware that the Applicants’ employment had been terminated, or having this communicated to them, he made the application for unfair dismissal.

[90] To the extent that it is necessary, I am satisfied that part of any delay in making the application for unfair dismissal is also attributable to the Applicants’ representatives in that neither Mr Ou or Mr Fogliani understood that the Applicants’ employment had been terminated and, when it was found that the employment was terminated, it was understood that the date of termination was 4 August 2016, such that the applications were made within the requisite period.

When Applicants became aware of dismissal

[91] I am satisfied that the Applicants did not become aware that there employment had ceased until 4 August 2016.

Action taken to dispute the dismissal

[92] I am satisfied that, prior to 4 August 2016, the Applicants were not aware that their employment had been terminated. Despite this, they had engaged with their union who took steps to have their employment situation resolved. For reasons known to himself Mr Jerkovich decided not to engage with Mr Ou.

[93] The Applicants’ lawyer continued to pursue the contractual benefits claim and made application for relief from unfair dismissal on 18 August 2016.

Prejudice to the employer

[94] The employer claims no prejudice.

The merits of the application

[95] Whilst there is no question that the Applicants have not been advised of the reason for their dismissal or given an opportunity to respond, a consideration of the merits of an application for relief from unfair dismissal is predicated on a finding that the Applicants were dismissed and had not abandoned their employment. I make no finding on this matter.

[96] This is therefore a neutral matter in my consideration.

Fairness

[97] No submissions were made on this matter.

Conclusion

[98] The submissions of both parties in this matter concentrated on whether or not there had been a dismissal of the Applicants by the Respondent. As explained above, this is not a matter I need to decide. If an extension of time is not granted then this question does not need to be answered and if the extension of time is granted the question of dismissal will be determined at the time the merits of the application are decided.

[99] The Commission can only grant an extension of time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd 31 where the Full Bench of Fair Work Australia found:

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…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.

[100] It is not the case that the reason for delay must be exceptional to enable an extension of time to be granted, it is that the circumstances are exceptional, taking into account a range of matters including the reason for delay. The former formulation is often incorrectly put to the Commission.

[101] Further, the Commission, in deciding if an extension of time should be granted, is not restricted in considering only those matters in s.394(3)(a)-(f). There are matters to be taken into account but are not limiting of those matters that may be considered.

[102] The circumstances in this case are unusual. Whilst each issue on its own might or might not lead to a conclusion that there were exceptional circumstances, a combination of events cannot be easily ignored.

[103] The Applicants speak very limited or no English and cannot read English yet the communications from the Respondent to each of them have been in English. The only communication to the Applicants in Chinese was the direction not to return to work on 1 June 2016. The Respondent says that the employees abandoned their employment but took no action to provide them with final wages or payslips.

[104] In the letter of 7 June 2016, Mr Jerkovich required the Applicants to contact him by 10 June 2016 by phone. The evidence is that neither of the Applicants speak English, a fact known to Mr Jerkovich, such that it is difficult to see how they could have met this requirement.

[105] The Applicants’ representative (Mr Ou of the AMWU) did contact Mr Jerkovich by the required date specified in the letter of 7 June 2016 but for some reason Mr Jerkovich decided he could sort the matter out directly with the employees concerned. Given the Applicants had not responded to his letter of 7 June 2016 this is inexplicable. Mr Ou, in his correspondence, was clear that he (and the Applicants) considered that they were still employed and were waiting to be called back to work. Mr Ou had dealt with Mr Jerkovich on other matters in the workplace and resolved these. Mr Jerkovich’s decision to ignore Mr Ou is, in these circumstances, highly unusual.

[106] On receipt of the application in the WAIRC for contractual benefits (on 5 July 2016), the Respondent did not advise the Applicants or their lawyer that it considered the Applicants had abandoned their employment for another four weeks in circumstances where the claim included wages and work from 1 June 2016.

[107] The Respondent has never made final payments to either Mr Liang or Mr Zeng of their outstanding leave credits, issued them with a final payslip or a separation certificate.

[108] This combination of circumstances makes this matter unusual and out of the ordinary such that I am satisfied that there are exceptional circumstances such that an extension of time should be granted.

[109] I make this finding without making any specific finding as to the date of dismissal. If it is that the date of dismissal was 4 August 2016 then an extension of time would not be required (although I consider it highly arguable that the Applicants were not aware of their status until 4 August 2016). Given the dispute on the date of dismissal it is better that a positive finding as to exceptional circumstances be made. To be clear, if it is subsequently found that the date of dismissal was a date in June 2016 I would still grant the application for an extension of time. The exceptional circumstances I have found exist regardless of the date of dismissal.

[110] Even if the date of dismissal was June 2016 I am satisfied that there is an acceptable explanation for the full period of the delay in circumstances where the Respondent had, at the time the applications were made, still failed to pay the Applicants their final wages, provide a final pay slip or issue a separation certificate.

[111] For these reasons, I will grant an extension of time to Mr Liang within which to make his application for unfair dismissal.

[112] I shall therefore issue an order 32 that extends time for making an application for unfair dismissal for Mr Hanran Liang to 18 August 2016.

[113] For these reasons, I will grant an extension of time to Mr Zeng within which to make his application for unfair dismissal.

[114] I shall therefore issue an order 33 that extends time for making an application for unfair dismissal for Mr Xianghua Zeng to 18 August 2016.

COMMISSIONER

Appearances:

J. Raftos, of counsel for the applicants.

M. Vallence for the respondent.

Hearing details:

2016.

Melbourne:

November 10.

 1   Exhibit R1, attachment 3.

 2   Exhibit R1, attachments 4 and 5.

 3   Exhibit A1, attachment 8.

 4   Exhibit A1, attachment 9.

 5   Exhibit R1, attachments 6 and 7.

 6   Exhibit A1, attachments 12 and 13.

 7   Exhibit A1, attachment 14.

 8   Transcript PN99.

 9   Transcript PN120.

 10   Transcript PN273.

 11   Transcript PN308.

 12   Transcript PN275.

 13   Exhibit R1, attachment 2.

 14   Transcript PN363.

 15   Transcript PN366-375.

 16   Transcript PN461.

 17   Transcript PN464-465.

 18   Transcript PN590.

 19   Transcript PN624.

 20   Exhibit R2, paragraph 20.

 21   Exhibit R1, attachment 2.

 22   Exhibit R1, attachment 2.

 23   Transcript PN682.

 24   Sharp v MCG Group Pty Ltd, [2010] FWA 2357 at [49].

 25   Ayub v NSW Trains, [2016] FWCFB 5500 at [41]-42].

 26   Ingersole v Castle Hill Country Club Ltd [2014] FCCA 450, at [358] by reference to the Evidence Act 1995.

 27   [2016] FWCFB 5500 at[50].

 28   [2016] FWCFB 5500.

 29   MA000010.

 30   O’Meara v Stanley Works Pty Ltd, PR973462 at [31].

 31 (2011) 203 IR 1.

 32   PR588230.

 33   PR588231.

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