Ji Kim v Ashfield Bowling Club Limited

[2021] FWC 4925

[2021] FWC 4925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ji Kim
v
Ashfield Bowling Club Limited
(U2021/1796)

DEPUTY PRESIDENT COLMAN MELBOURNE, 11 AUGUST 2021

Unfair dismissal application – whether filed out of time – whether exceptional circumstances – application dismissed

[1] This decision concerns an application by Ms Ji Young Kim for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). Ms Kim was employed by the Ashfield Bowling Club Limited (the club) on a casual basis from December 2019. Ms Kim claims that she was dismissed from her employment with the club on 14 February 2021, when she was told that she could not work at the club until she obtained an appropriate visa. The club contends that her employment ended in or around 5 October 2020, in conformity with her visa restrictions, and that she then became an employee of another company, Adkent Shelving Installations Pty Ltd (Adkent), a business run by the company’s bookkeeper, Ms Raeleigh Aston. The club submits that it was Ms Kim’s employment with Adkent that ended in February 2021, and that her unfair dismissal application is out of time.

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). If Ms Kim’s employment with the club ended on 14 February 2021, as she contends, her application was lodged within the 21 day period. However, if the club is correct, and her employment with the club ended in early October 2020, the application was lodged out of time, and Ms Kim would require an extension of time under s 394(3) in order for her application to proceed. The application was listed for a jurisdictional hearing by video on 10 August 2021.

[3] Ms Kim is a national of the Republic of Korea who came to Australia in April 2019 on a working holiday visa. She obtained a second visa in April 2020. One of the conditions of each visa was that she not work for any one employer for more than six months. Ms Kim said that in May 2020, the club decided to sponsor her application for a further visa that would allow her to continue working for the club. Ms Kim said that her second visa ‘ran out’ on 10 October 2020 (she appears to mean that this marked the six month limit on working with the one employer) but that, because the club had decided to sponsor her further visa application, its manager Mr Oliver Anthony arranged for Ms Kim to be paid by Adkent. Ms Kim filed a witness statement made by Mr Anthony, in which he confirmed that he had organised for Adkent to ‘pay’ Ms Kim until her visa situation was resolved.

[4] Ms Kim said that, despite the fact that Adkent was paying her wages, she believed that she remained an employee of the club, because she continued to work at the club until February 2021. Ms Kim said that nobody told her in October 2020 that she had been dismissed from the club and that she had understood that Adkent was simply paying her wages because this was necessary in order to comply with her visa restrictions. Ms Kim said that on 14 February 2021, Mr Anthony told her that the Board had instructed him to tell her that she could not work at the club until her visa situation was ‘fixed’.

[5] Mr Don Latham, the chairman of the club’s board of directors, filed a witness statement in which he said that on or around 5 October 2020, Ms Kim was informed that she could no longer be employed by the club due to her visa status. Mr Latham produced a payslip dated 5 October 2020, which he said recorded the last payment made by the club to Ms Kim. Mr Latham said that at that time, the club was prepared to reemploy Ms Kim later, if she obtained the appropriate visa status. He said that Ms Kim wanted to keep working, and that the club assisted her to find a role undertaking casual work with Ms Aston’s company, Adkent, where Ms Kim had worked in the past. The club had a contract with Adkent to manage its accounts.

[6] Ms Aston’s evidence was that on 5 October 2020 Ms Kim commenced working for Adkent as a casual employee, assisting her with bookkeeping work for Adkent’s clients, including the club. Ms Aston said that she told Ms Kim that she would pay her for 38 hours of work each week, and that because Adkent’s contract with the club required a person to be on site at the club to maintain its records, Ms Kim could work on the club premises and report to her remotely. Ms Aston denied that there was any arrangement between Adkent and the company to reimburse Ms Kim’s wages.

[7] Importantly, the parties submitted to the Commission copies of payroll activity details from October 2020 that show Ms Kim in receipt of wages from Adkent, in respect of which Adkent makes superannuation guarantee contributions and deducts tax on a PAYG basis.

[8] I find that Ms Kim’s employment with the club ended on 5 October 2020. Ms Kim had been a casual employee of the club. Subject to any arrangement to the contrary, the contractual basis of casual employment is that each engagement stands alone, and a person is employed from engagement to engagement, but not between engagements or on an ongoing basis. In periods when work is not allocated, there is no employment. In the present case, irrespective of whether the club advised Ms Kim that she was dismissed, it is clear that the club did not allocate any work to Ms Kim after the week of 5 October 2020. This is the date of the last pay record from Ms Kim’s employment with the club. I note that a club roster document was produced by Ms Kim, on which her name appears in the period from October 2020 to February 2021. However, Mr Latham disputed the genuineness of the document, and said that it was prepared by Mr Anthony, who was later dismissed by the club in connection with various alleged irregularities. But it any event, there would be nothing unusual about the employee of a contractor appearing on a company roster. It is clear that Ms Kim worked at the club from October 2020 until February 2021. But it is also clear that she did not work for the club during this time. Instead, Ms Kim was hired by Ms Aston and worked for Adkent, which paid her salary because she was Adkent’s employee. So much is evident from the pay records.

[9] I do not accept Ms Kim’s statement that she did not know that she had ceased to be an employee of the club in October 2020, or that she had become an employee of Adkent. Ms Kim explained to the Commission that the reason Adkent began ‘paying her’ was for the purpose of complying with her visa restrictions. Ms Kim also explained that one of these restrictions was that she could not work for one employer for more than six months on the one visa. I find that she must have understood that she could not continue to be employed by the club, because that would be in contravention of her visa. Ms Kim also said that from October she was ‘waiting’ for the club to sponsor her. In my view, what she was waiting for was the possibility to work again as an employee of the club, once the sponsored visa was granted.

[10] Further, I accept Ms Aston’s evidence that she told Ms Kim that she would be paid for 38 hours of work a week, assisting Ms Aston to service Adkent’s clients, and that she could work at the club and report back to her. Ms Aston hired Ms Kim to work for Adkent. The fact that Ms Kim performed work on the premises of the club, and no doubt interacted with the club’s staff, including Mr Anthony, does not alter this conclusion.

[11] Ms Kim’s representative, Ms Ellis, referred to a text message sent from Ms Aston to Ms Kim on 14 January 2021, which asked Ms Kim whether she would be happy to work with her rather than at the club. But contrary to Ms Ellis’s contention, this text was not offering Ms Kim employment for the first time. As Ms Aston explained, the text simply offered Ms Kim different work, not based at the club, in her existing employment with Adkent. Ms Ellis asked why, if Ms Kim had become an employee of Adkent in October 2020, there was no contract of employment. The answer is that there was simply no written contract of employment. This is very common. There was however an unwritten contract, the terms of which provided that Ms Kim would work 38 hours a week for Adkent assisting Ms Aston with administrative work for Adkent’s clients for the salary she received each pay period.

[12] Ms Kim submitted that it would be unlawful for the club to have used another entity to pay her. This argument was not explained. In any event, this is not what occurred. Ms Kim ceased to be provided with casual shifts by the club. She was instead hired by Adkent. It is not necessary for me to make any finding about whether there was an arrangement between the club and Adkent by which Adkent would provide Ms Kim’s services to the club for a fee. Such an arrangement would be perfectly consistent with Ms Kim being an employee of Adkent during the relevant period.

[13] There is no evidence that Ms Kim was allocated any casual work by the club after the week of 5 October 2020. Ms Kim was not authorised to work for the club and was not paid by the club after this time. Instead, she worked as an employee of Adkent. Therefore, I conclude that Ms Kim’s employment with the club ended on 5 October 2020, not on 14 February 2021, as Ms Kim contended. The 21-day period within which an unfair dismissal application needed to be lodged ended at midnight on 26 October 2020. Ms Kim’s application was lodged on 3 March 2021, some four months out of time. In order for Ms Kim’s application to proceed, she requires the Commission to grant a further period of time.

[14] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[15] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: 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. I will consider each of these matters as they pertain to Ms Kim’s application.

[16] The Act does not specify what reasons for delay tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Ms Kim said that she believed that her application was lodged within the 21 day period because she remained an employee of the club from October 2020 to February 2021. In this she was mistaken. It is well established that a person’s unawareness of the legal requirement to lodge an application within 21 days is not an acceptable or reasonable explanation for the delay. I consider that the same is true for a mistaken belief about the legal relationship between the parties. Ms Kim has simply misunderstood the relevant law. I do not consider that Ms Kim has provided an acceptable or reasonable explanation for the delay. This weighs against an extension of time.

[17] It is not clear precisely when Ms Kim was ‘notified’ of her dismissal. What is clear however is that she became an employee of Adkent on 5 October 2020, when Ms Aston hired her. Ms Kim’s employment with the club had ceased by that time. I will assume in Ms Kim’s favour, that she became aware of the termination of her employment with the club after it took effect, but only by a matter of days. I nevertheless consider this to be a neutral consideration. I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Kim and other persons. And there is no evidence of prejudice to the employer. These are neutral considerations.

[18] I do not consider that Ms Kim took action to dispute the dismissal, aside from filing this application. This counts against an extension of time.

[19] As to the merits of the application, Ms Kim’s essential argument was that her dismissal was unfair because the company had told her that it would support her in obtaining a new visa but then did not make good on its promise, and that there had been no problems with her performance, nor did she receive any warning prior to her dismissal. Ms Kim also contended that she had been underpaid, both because she had worked more hours than those for which she was paid, and because she was not paid at all for the last two weeks of her employment in February 2021. The second of these allegations is properly directed at Adkent, not the club. It is not clear which entity is the subject of the first allegation.

[20] The club’s contention on the merits, as I perceive it, is that it was simply obeying the law by refusing to employ Ms Kim beyond 10 October 2020, because to do so would have contravened migration law, and that it was therefore fair and reasonable to dismiss Ms Kim.

[21] An application to extend time is in the nature of an interlocutory application and the merits of the case would depend on further factual findings. I would note that in my opinion, the refusal of an employer to continue to employ a person in contravention of migration law could not be considered unfair. Nevertheless, the relevant provisions have not been the subject of any argument. On the material before me, I am prepared to consider the merits of the application to be a neutral consideration.

Conclusion

[22] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Ms Kim did not advance an acceptable or reasonable explanation for the delay. None of the considerations in s 394(3) weigh in favour of an extension. They do not entail exceptional circumstances, nor are there any other exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time.

[23] I decline to grant an extension of time under s 394(3). Ms Kim’s unfair dismissal application is therefore dismissed.

[24] Finally, I note that Ms Kim’s application sought by way of remedy an order for the payment of outstanding wages and statutory entitlements. The Commission has no power to make such orders. Claims of this nature must be made in a court. My decision to dismiss Ms Kim’s unfair dismissal application does not affect her rights to seek redress for any underpayment of wages or statutory entitlements.

DEPUTY PRESIDENT

Appearances:

J Kim and K Ellis for the applicant
J Dunlop for the respondent

Hearing details:

2021
Melbourne
10 August

Printed by authority of the Commonwealth Government Printer

<PR732703>