Kelun Wang v Daw Trading P/L T/A a Grade

[2013] FWC 9270

[2013] FWC 9270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kelun Wang
v
Daw Trading P/L T/A A Grade
(C2013/6183)

COMMISSIONER BISSETT MELBOURNE, 27 NOVEMBER 2013

Application to deal with contraventions involving dismissal - jurisdiction.

[1] Kelun Wang (the Applicant) has made an application to the Fair Work Commission (the Commission) for the Commission to deal with a contravention of the general protections provisions involving dismissal in accordance with s.365 of the Fair Work Act 2009 (the Act). The Applicant was dismissed from his employment with Daw Trading Pty Ltd T/A A Grade (the Respondent) on 30 August 2013. The application was made to the Commission 28 days after the dismissal or 7 days beyond the 21 day time limit for making such an application.

[2] The Applicant has applied for an extension of time within which to make the application.

[3] The matter was subject to conciliation in an attempt to settle the matter in dispute. This was not successful. In order to issue a certificate pursuant to s.369 of the Act it is necessary, in the first instance, to decide if I should grant an extension of time for the making of the application.

Legislation

[4] The Act states:

366 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.

[5] In order to decide if there are exceptional circumstances such that an extension of time should be granted it is necessary that I consider each of the matters in s.366(2)(a)-(e).

[6] To assist in the consideration of this matter both the Applicant and Respondent, in response to directions issued, have provided written submissions. The parties have indicated a willingness that I make a decision as to the extension of time on the basis of the written submissions made by them.

Relevant facts

[7] The Applicant’s first language is not English.

[8] The Applicant says he left the workplace on 30 August 2013 following an incident at work where he says he was told to pack his things and leave. He says he was asked by the Respondent to leave. He did not attend the workplace during the period 30 August - 14 September 2013 due to the incident at work and confusion as to his status.

[9] The Applicant says that he did not receive correspondence sent by the Respondent on 30 August 2013 with respect to his employment as he had moved house in May 2013 and the Respondent sent the letter to his old address. He finally received the letter on 14 September 2013. The letter he received indicated that the Respondent had accepted his resignation although he says he did not resign.

[10] On receipt of the letter the Applicant says he contacted the Respondent and asked that he be provided with a letter that properly stated he had been terminated. When this letter was not received he then took action to make an application to the Commission.

[11] The Applicant says that there is no prejudice to the Respondent in granting an extension of time.

[12] Mr Jin of the Respondent says that the Applicant resigned his position on 30 August and that the Respondent paid him an additional weeks’ pay.

[13] Mr Jin says that he sent the letter of 30 August 2013 to the Applicant at the home address the Respondent had in its records as had been provided by the Applicant.

[14] Mr Jin says that on 3 September 2013 the Applicant rang him and asked for an amended letter. Mr Jin says that if the Applicant did not receive the letter until 14 September it does not explain why he contacted Mr Jin on 3 September and asked for the letter to be re-written.

[15] Mr Jin says that from 30 August, apart from his request of 3 September that the letter be re-written, the Applicant did not come to work or contact the Respondent and that, if he was uncertain as to his position, he should have contacted them.

Consideration

[16] The Applicant says that the reason for the delay in making the application is due to some confusion on the part of the Applicant as to his employment status with the Respondent.

[17] Whilst there is no dispute that the Applicant did not return to work after 30 August 2013 following an incident at work, no explanation is given by the Applicant for not returning or contacting his employer after this date.

[18] The Respondent’s belief that the Applicant resigned from his employment on 30 August 2013 is reflected in the letter of that date and the payments made to the Applicant.

[19] The Applicant either thought he continued to be employed, had been dismissed or had resigned. Any confusion as to his status does not explain his delay in making his application.

[20] If he resigned, even if he was forced to do so by the action of the employer, he must have known that this took effect from 30 August 2013. If his employment was terminated he must also have known the date of this was 30 August 2013. There is no other explanation as to why he did not return to work after 30 August 2013 or contact the Respondent until he received the letter acknowledging his resignation.

[21] Even if the Applicant did not become aware that his employment had been terminated until 14 September 2013, his application was not made to the Commission until 27 September 2013. Whilst he argues some delay was due to him seeking to have the letter amended to properly reflect what he says was the termination of his employment, nothing is put to fully explain the delay in making his application until 27 September 2013.

[22] There is nothing that indicates that the Applicant took any action to dispute his dismissal except for the making of this application.

[23] There is little material before me that would allow me to make any assessment of the merits of the claim of the Applicant.

[24] There is nothing that suggests any prejudice to the Respondent if the extension of time is granted.

Conclusion

[25] I am satisfied that the Applicant’s employment came to an end with the Respondent on 30 August 2013 and that he was aware that this was the case.

[26] The Applicant has given no satisfactory explanation for the totality of the delay in making the application to the Commission. Whilst some explanation is given for some of the period of delay it does not, in my opinion, satisfactorily explain all of the delay. The absence of activity by the Applicant between 30 August 2013 and 14 September 2013 in determining his employment status is not explained at all by him. Whilst his new address might explain the delay in receiving the letter from the Respondent it does not explain his failure to contact the Respondent. On the basis of the material before me I have concluded that he was aware on 30 August that his employment had come to an end. There is some explanation for the delay in making an application post 14 September 2013 but this does not explain the totality of that delay.

[27] I therefore conclude that there is no reasonable explanation for the delay.

[28] I accept that the Applicant’s first language is not English. This does not, of itself, create an exceptional circumstance. Whilst I accept that there is no prejudice to the Respondent in granting an extension I am not convinced, taking into account all of the matters in s.366 of the Act, that there are exceptional circumstances such that an extension of time should be granted.

[29]
For all of these reasons I am not satisfied that there are exception circumstances such that I should grant an extension of time for the making of the application. The application is therefore dismissed on the grounds that it was filed outside the requisite time period specified in the Act. An order dismissing the application will issue with this decision.

COMMISSIONER

Written submissions:

Applicant, 8 November 2013.

Respondent, 18 November 2013.

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