Jin Liang Lu v Express Interiors Pty Ltd T/A Express Interiors Pty Ltd

[2018] FWC 5503

[2018] FWC 5503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jin Liang Lu
v
Express Interiors Pty Ltd T/A Express Interiors Pty Ltd
(C2018/3449)

COMMISSIONER PLATT ADELAIDE, 3 SEPTEMBER 2018

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

Summary

[1] Mr Jin Liang Lu has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Express Interiors Pty Ltd T/A Express Interiors Pty Ltd (Express Interiors) on 22 May 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 24 June 2018.

[3] Mr Lu’s application identified that it was made beyond the 21 days from the date of dismissal and provided the following explanation:

“It has been delayed because I was first went to [CFMMEU] Union to report and complained about this to hope to have a solution from them, but it has been delayed by the Union and the company until 29th of May 2018 (sic). So then I went to fair work to ask for further help and fair work has recommended me to a legal service (Azin), and this for me delayed again for another week until 14th of June 2018 (sic). I then on the 20th of June received a reply from Azin(legal service), informed me that he couldn’t help me, and so I had to go back to fair work to seek for help again.”

[4] Express Interiors filed a form F8A Employer Response on 29 June 2018 which indicated that it had never employed Mr Lu, and asserted that Mr Lu was employed by Buildest Interiors.

[5] On 17 July 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a Hearing by telephone conference on 20 August 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the Applicant and Respondent who were directed to provide an outline of argument of their respective positions by 3 and 10 August 2018 respectively.

Submissions

[6] Mr Lu provided written submissions which are relevantly summarised as follows:

•  After the dismissal Mr Lu contacted the CFMMEU for assistance in resolving the matter.

•  Mr Lu met with the CFMMEU on 29 May 2018.

•  Mr Lu then went to the Fair Work Ombudsman for help and he was advised to contact a legal service (Azin).

•  A further delay of two weeks occurred whilst he waited for a reply from Azin.

•  Azin provided a reply to Mr Lu’s correspondence on 20 June 2018 and advised that they could not assist him.

•  Mr Lu then contacted “Fair Work” a second time.

•  Mr Lu provided a copy of a payslip he received from Express Interiors and a cheque made out to him from Express Interiors.

[7] Express Interiors provided written submission which reiterated its position that Mr Lu was never an employee.

[8] A Hearing was conducted by way of telephone conference on 20 August 2018. A sound file record of the telephone conference was kept. Mr Lu represented himself with the support of an interpreter. Ms Ivy Xue represented Express Interiors.

[9] The Applicant reiterated the information contained in his submissions and further advised:

•  He believed that he had not been paid correctly during his employment and that his entitlements had not been properly calculated.

•  He contacted the CFMMEU about his concerns and he met with them on 29 May 2018 (with a number of other employees). The Union responded to Mr Lu’s concerns on the same day.

•  Mr Lu was not satisfied with the response and sought further advice.

•  Mr Lu contacted Mr Azin who he suggests is a lawyer. Mr Azin advised Mr Lu on 20 June 2018 that he could not assist him with the matter.

•  Mr Lu then contacted “Fair Work” and lodged a general protections claim on 24 June 2018.

•  Mr Lu was asked if he could provide evidence which supported the conduct of these conversations and was given until 10:00am on 21 August 2018 to provide same. On 21 August 2018 a person from the ABCC contacted my Chambers and advised he would send a USB containing material provided to him by Mr Lu. This information was received on 23 August 2018. The USB contained a number of images of rosters and payroll information some of which had already been submitted by Mr Lu.

•  No contextual information was provided by Mr Lu. The USB also contained a number of videos of what appears to be meetings conducted on CFMMEU premises between 28 June 2018 and 20 July 2018 where a number of persons of Asian appearance are engaged with meetings with CFMMEU officials about an underpayment of wages claim.

[10] Express Interiors reiterated it submissions and advised that the cheque was paid to Mr Lu after the CFMMEU contacted its office. Ms Xue was unable to explain the existence of the payslip.

Applicable Law

[11] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

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

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  any action taken by the person to dispute the dismissal; and

(c)  prejudice to the employer (including prejudice caused by the delay); and

(d)  the merits of the application; and

(e)  fairness as between the person and other persons in a like position.”

[12] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Lt¹ 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 every day 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.”

Consideration

[13] This general protections application by Mr Lu was made 12 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[15] Ignorance of the timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time: Rose v BMD Constructions Pty Ltd. 2

[16] If Mr Lu has failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances: Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters. 3

[17] Mr Lu appears to have been seeking advice on a claim for denial of contractual benefits as opposed to making a complaint about the nature of his dismissal. The delaying in making the application to pursue a monetary claim is of itself not an exceptional circumstance.

[18] I accept that Mr Lu had a discussion with representatives of the CFMMEU on 29 May 2018 concerning wage entitlements, and that Mr Lu received advice from the CFMMEU that they could not assist him on the same day. I accept that Mr Lu was involved in further discussions with the CFMMEU regarding wage entitlements between 28 June and 20 July 2018. That Mr Lu determined to delay his application to pursue an underpayment of wages claim is not of itself an exceptional circumstance. Mr Lu has not explained the reasons why he could not have lodged his application earlier.

[19] I am unsure of what assistance Mr Lu sought from Mr Azin, or why Mr Azin could not assist him. There is insufficient material before me to establish representative error, if indeed Mr Azin was so engaged. I have not been provided with any supporting communications. If Mr Azin was a representative, it does not appear that Mr Azin was alone responsible for the delay as there is no evidence that Mr Lu pressed him to provide the advice in a more timely fashion.

[20] I note that Mr Lu is not a native English speaker and I have made allowances for this.

[21] Mr Lu has not explained that period of the delay which occurred after 29 May 2018.

Any action taken by the person to dispute the dismissal

[22] Whilst Mr Lu contacted the CFMMEU after the dismissal it appears that this related to his assertion that he was not paid his correct entitlements, as opposed to a claim that he was improperly dismissed.

Prejudice to the employer (including prejudice caused by the delay)

[23] There is no submission that the granting of an extension of time represents prejudice to Express Interiors.

The merits of the application

[24] The evidence before me suggests that Mr Lu was employed by Express Interiors. In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[26] For the reasons I have set out above, I am not satisfied that Mr Lu’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An
Order⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances:

Mr Lu on his own behalf.

Ms I Xue on behalf of the Express Interiors.

Hearing details:

2018.

Adelaide:

August 20.

1 [2011] FWAFB 975.

 2   [2011] FWA 673.

 3   [2018] FWCFB 901.

4 PR700005.

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