Jia Jun Ye v Meticulous Finishes

[2021] FWC 6334

[2021] FWC 6334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jia Jun Ye
v
Meticulous Finishes
(U2021/7769)

DEPUTY PRESIDENT LAKE BRISBANE, 12 NOVEMBER 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed

[1] Mr Jia Jun Ye (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Meticulous Finishes (the Respondent).

[2] On 23 September 2021, the Chambers of Vice President Catanzariti wrote to the Applicant noting that the Application appeared to be lodged out of time and requested a written response explaining whether there were exceptional circumstances for not lodging the application on time.

[3] The Applicant provided his response on 27 September. The Vice President’s Chambers advised the parties that the matter had been allocated to my Chambers on 29 September 2021 to determine whether the Commission should exercise its discretion to extend the time limit pursuant to s.394(3) of the Act.

[4] The Respondent has also raised a second jurisdictional objection that that the employer is a small business, and the minimum employment period hasn’t been met. Additionally, the Respondent alleged that the dismissal was a case of genuine redundancy.

[5] It was determined that these objections would be dealt with by oral hearing on 8 November 2021, prior to which both parties had the opportunity to file written submissions and statements.

[6] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

Was the application lodged within time?

[7] Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

[8] The Applicant lodged his application on 1 September 2021 and accepted that his application was made outside of the 21 days required under s.394(2) of the Act. The Applicant’s Form F2 stated that his termination took effect on 30 July 2021. However, his submissions and evidence highlighted that he wasn’t aware of the termination until he received his payslip on 4 August 2021, which indicated a termination pay.

[9] The Respondent opposed the granting of an extension, arguing that the Applicant was made aware of his termination at a team meeting on 13 July 2021, where the Respondent says that all employees were given two weeks’ notice that there would not be any work after 30 July 2021.

[10] In consideration of the above, I accept that the Applicant’s employment ended on 30 July 2021, and therefore, the application was made out of time.

Should a further period be granted?

[11] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application be made:

“(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 like position.”

[12] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of the Fair Work Australia stated:

“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.”  2

[13] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).

[14] For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.

[15] Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

Consideration

Reason for the delay (s. 394(3)(a))

[16] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”

[17] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 6

[18] The Applicant led evidence that the reason for the delay was due to the Respondent not paying his redundancy payment. The Applicant further stated that he was not given any notice of dismissal or explanation prior to an email from the Respondent on 12 August 2021, although submitted in his Form F2 that he was terminated on 30 July 2021. The Applicant stated that he tried to contact the Respondent on 4 August 2021 after seeing a termination component on his payslip. The Applicant conceded that he understood his application would be made out of time at this time, but felt he had to do everything he could.

[19] In relation to the reason for the delay, the Respondent submitted that there had been a team meeting on 13 July 2021 giving employees two weeks’ notice that employment would cease on 30 July 2021 if the builder did not pay the invoices. The Respondent submitted that employees were reminded on more than one occasion between 13 July 2021 and 30 July 2021 of this. On 30 July 2021, the Respondent said it was announced to employees that there was no more work, and that day they all went out for lunch and beers.

[20] Having regard to the above, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[21] The Applicant submitted on his Form F2 that he became aware of his dismissal on 30 July 2021, and later submitted that he was made aware due to his payslip of 4 August 2021.

Action taken to dispute the dismissal (s.394(3)(c))

[22] The Applicant’s evidence was that he attempted to contact the Respondent, but accepted the application was still out of time at this stage.

Prejudice to the employer (s.394(3)(d))

[23] The Respondent made no submissions in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 7 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[24] In Kornicki v Telstra-Network Technology Group, 8 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[25] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission “should not embark on a detailed consideration of the substantive case.” 9

[26] Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Given I have not heard the merits of this matter I will weight this factor as neutral.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[27] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[28] The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.

Conclusion

[29] Having regard to all the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[30] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR735756>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 [14].

 2   [2019] FWC 25 [13].

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

 5   [2018] FWCFB 901.

 6   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 8   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 [31].