Jong Yii v Skyhigh Mr Investment Pty Ltd Summary

[2023] FWC 3378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jong Yii
v

Skyhigh Mr Investment Pty Ltd

(U2023/11373)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 15 DECEMBER 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

Jong Yii (applicant) has made an application under s 394 of the Fair Work Act 2009 (Act) in which he contends that he was unfairly dismissed by Skyhigh Mr Investment Pty Ltd (respondent). Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The applicant says that he was dismissed on 21 October 2023. The 21-day period ended on 11 November 2023. The application was lodged by email on 16 November 2023. In order for his application to proceed, the applicant requires an extension of time.

The Act permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss 394(3)(a) to (f). As to the reason for the delay (s 394(3)(a)), the applicant said that after his dismissal he was looking for help to prepare his application, and that he needed to gather evidence. I do not consider this to be a reasonable explanation for the delay. This weighs against an extension of time. The other matters in ss 394(3) are neutral factors. The applicant did not become aware of his dismissal after it took effect. He took no other action to dispute it. There is no prejudice to the employer. There are no matters relevant to fairness between the applicant and other people. As to the merits, the applicant said that his dismissal was unfair because no reason was given for the dismissal, and because it took immediate effect. The respondent said that the applicant simply abandoned his employment. I regard the merits as neutral at this stage, as they would depend on factual findings. In my assessment there are no exceptional circumstances in this case.

The Commission can extend time only if it is satisfied that there are exceptional circumstances. As I am not satisfied that there are such circumstances, I have no power to extend time. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

W. Tao for the applicant.
D. Chan the respondent.

Hearing details:

2023
Melbourne
15 December

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jong Yii has applied to the Fair Work Commission for an unfair dismissal remedy against Skyhigh Mr Investment Pty Ltd. Jong Yii claims that he was unfairly dismissed by Skyhigh Mr Investment Pty Ltd. The statutory requirement for unfair dismissal applications is that they must be made within 21 days of the dismissal taking effect, or within such further period as the Commission allows. Jong Yii was dismissed on 21 October 2023, and the 21-day period ended on 11 November 2023. The application was lodged by email on 16 November 2023. The applicant requires an extension of time in order for his application to proceed. The Fair Work Act 2009 permits the Commission to extend time only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss 394(3)(a) to (f).

The Deputy President of the Fair Work Commission considered the applicant's reason for the delay, which was that he was looking for help to prepare his application, and that he needed to gather evidence. The Deputy President did not consider this to be a reasonable explanation for the delay. The other matters in ss 394(3) were neutral factors. The applicant did not become aware of his dismissal after it took effect, he took no other action to dispute it, and there was no prejudice to the employer. There were no matters relevant to fairness between the applicant and other people. As to the merits, the applicant said that his dismissal was unfair because no reason was given for the dismissal, and because it took immediate effect. The respondent said that the applicant simply abandoned his employment. The Deputy President regarded the merits as neutral at this stage, as they would depend on factual findings. In the Deputy President’s assessment, there were no exceptional circumstances in this case.

The Deputy President concluded that the Commission can extend time only if it is satisfied that there are exceptional circumstances. As the Deputy President was not satisfied that there were such circumstances, there was no power to extend time. The application was therefore dismissed.

No orders were made.

Jong Yii v Skyhigh Mr Investment Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established