Kuen Kuen Siu v Chinese Community Social Services Centre Inc

[2016] FWC 4945

[2016] FWC 4945

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kuen Kuen Siu
v
Chinese Community Social Services Centre Inc
(U2016/6229)

COMMISSIONER LEE MELBOURNE, 10 AUGUST 2016

Application for relief from unfair dismissal - extension of time - application dismissed.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 20 May 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Kuen Kuen Siu (the Applicant) claims that she was unfairly dismissed from her employment with Chinese Community Social Services Centre Inc (the Respondent).

[2] The application was lodged by the Applicant on 15 April 2016. It is not in contest the dismissal took place on 16 December 2015 and the application was lodged 121 days after dismissal. The application was therefore lodged 100 days late. The matter was listed for Extension of Time Conference/Hearing before me on 20 May 2016. I granted permission to Mr Kwok to represent the Respondent, given the number of witnesses, to assist in the efficient conduct of the matter as there was some complexity in the matter. Sworn evidence was provided by the Applicant and by Ms Kim Au, Chief Executive Officer and Ms Poon, Manager for the Respondent.

[3] The law to be applied is set out in s.394(2) and s.394(3) of the Act as relevant to this application. In short, the application must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission), pursuant to s.394(3) of the Act, can allow a further period for the application to be made if it is satisfied that there are exceptional circumstances taking into account a range of factors, being:

(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 similar position.

[4] In dealing with these matters the consideration is whether or not there are exceptional circumstances within the meaning of the Act. As set out above, s.394(3)(a)-(f) of the Act provides that a further period can be allowed. The term “exceptional circumstances” was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty). 1 I am not going to set out what was said in that case, however I note that decision made clear the meaning of “exceptional circumstances” in the context of the Act at paragraph 13, relevantly, and paragraph 15 and I will rely on and adopt that approach in determining the matter.

[5] I will now give consideration to s.394(3)(a)-(f) of the Act. Firstly, the reason for the delay. On this matter, the Applicant has given evidence as to a range of reasons for the delay. In general, the evidence of the Applicant was that she was traumatised and upset by the dismissal. The Applicant initially thought that as the allegations were false, if she dropped everything and did nothing that she would forgive and forget and settle back in. The Applicant decided at that time to focus on her mother who has been ill, being concerned that she may have to go back to Hong Kong to care for her for a period and she decided not to take any action at that time about the dismissal.

[6] Furthermore, there was reference to an event on 22 January 2016 where the Applicant telephoned Ms Poon and there was a conversation in order to help arrange transportation for a former client.  The summary of the evidence on that point seemed to me to be, and I put this to the Applicant and she agreed, that essentially it was a matter of that conversation giving rise to concern on the part of the Applicant, that relevant witnesses were not investigated as part of the investigative process which ultimately led to the findings of misconduct against her and ultimately her dismissal, and this had an effect in terms of her reconsidering whether or not to lodge an application.

[7] On that point, I note that this occurred around 22 January 2016.  Despite that, there was still a considerable period of time until April 2016 when the application was lodged, so I do not consider that at all to be an acceptable reason for the delay.

[8] There were references in the written material that the Applicant supplied, as well as the oral evidence she gave at the hearing, about what I will describe generally as health issues.  The Applicant gave evidence that she suffers from depression.  On questioning from me, she indicated that she has not been diagnosed with depression, has not attended a doctor and is not, as I understood it, being treated. Importantly, there was nothing in the evidence from the Applicant about the state that she says she has been in, in terms of suffering depression, which has satisfied me that it has acted as a barrier to her lodging the application during the 100 day period and I do not consider that is an acceptable reason for the delay.

[9] I have taken into account the sadness that has occurred in the Applicant’s family with the loss of her sister and the difficulties with her mother, but again none of those issues were put in a way that satisfied me that they, while tragic, would have led to a situation where for the entire 121 day period, the Applicant was not able to lodge an application and so for that reason does not meet the standard of being acceptable in the context of this part of the Act, nor do the issues of concerns about conflict with her husband and other marital difficulties that the Applicant referred to.

[10] The Applicant also gave evidence that she was well aware of the 21 day period, but even in those circumstances, clearly chose at a point in time not to take any action.

[11] Finally, there was some evidence at the hearing about cultural reasons for not seeking legal advice.  I am not satisfied that this evidence was credible and that there was some cultural barrier to the Applicant in seeking legal advice.  In any case, it is not necessary to appear at the Commission with legal representation and it is not necessary to get legal representation to lodge an application.

[12] To the extent that it is put as a barrier to actually making the application, again I am not satisfied that that is an acceptable reason.  It may be in particular circumstances that cultural reasons would be a barrier, but in the circumstances of this matter, there was nothing in the evidence to suggest that was the case.  I did not consider it to be credible evidence in this matter.

[13] Taking all those factors into account, particularly the fact that there is no evidence of incapacity for the Applicant to act during the period such that there might be exceptional circumstances, I am not satisfied that there is an acceptable reason for the delay and that weighs against granting an extension.

[14] The criterion at s.394(3)(b) of the Act is whether the person first became aware of the dismissal after it had taken effect. There is no doubt that the Applicant was aware of the dismissal and that it took effect on 16 December 2015. That is a neutral consideration.

[15] In terms of s.394(3)(c) of the Act, any action taken by the person to dispute the dismissal, I have taken into account that Applicant did not approach the employer and therefore did not seek to dispute the dismissal with the employer. I have to take into account however, the fact that the letter of termination, dated 16 December 2015, was provided to the Applicant. This letter from Ms Au was not tendered into evidence, but it was attached to the Form F3 - Employer Response to Unfair Dismissal Application (Form F3) which was filed by the Respondent on 26 April 2016. In this letter it states at paragraph 14:

“You are forbidden to attend our premises under any circumstances or contact any staff members, clients or volunteers in relation to your termination”. 2

[16] I note that a question arises as to the enforceability or perhaps even the lawfulness of making such a direction, but, nevertheless, I accept what the Applicant has said that in those circumstances, having been told in those terms to go essentially nowhere near the Respondent, it is not surprising that the Applicant did not take any action to dispute the dismissal directly with them.

[17] Overall, as to whether there was any other action taken by the Applicant, there was the reference to calling a union and evidence was given on that point.  However, the Applicant was not a member of the union.  There was no suggestion that she instructed the union to take any action on her behalf and therefore little arises from that.  Overall, there was no significant action taken by the Applicant to dispute the dismissal. This is a neutral consideration.

[18] As to s.394(3)(d) of the Act and whether there is prejudice to the employer, the Respondent made submissions on that point that there is prejudice. The onus is on the employer to demonstrate in evidence that there is prejudice arising from the delay. This matter concerns 100 days in delay. It has been held in previous cases 3 that a long delay gives rise to a general presumption of prejudice.  In these circumstances, I am satisfied that there could be prejudice to the Respondent.

[19] In terms of s.394(3)(e) of the Act, the merits of the application, the Respondent says the Applicant's dismissal was not harsh, unjust or unreasonable and that there was a disciplinary process. The Respondent further says that the application is without merit. The Form F3 filed indicated that the Applicant was dismissed because the Respondent had formed the view that the Applicant had repeatedly behaved unreasonably and unfairly towards employees in the Home and Community Care Program and elderly clients over a period of time, and that the conduct of the Applicant amounted to serious misconduct and therefore dismissed the Applicant.

[20] The Applicant submits that the dismissal is unfair.  In the materials, at Exhibit 1 4, she made reference to the fact that her recent performance appraisal in September 2015, before she was dismissed, rated her at a high level. There was a disciplinary action policy in place which was not followed, as written warnings were not given. She claimed that there was not enough time to prepare her response to the allegations, that she was not treated respectfully during the disciplinary meetings and today sought to adduce some evidence as to the efficacy of the investigatory process that was undertaken by the Respondent, and sought to cast doubt over its integrity and effectiveness.

[21] Evidence on the merits is rarely called at an extension of time hearing.  This matter was no different, despite there being some attempt to do so at the hearing.  Accordingly, the Commission should not embark on a detailed consideration of the substantive case; however, merits are an important part of the consideration as to whether to grant an extension of time.

[22] Having considered the material before me in respect to the merits of the case, there are certainly issues of concern that the Applicant has raised about the manner in which the investigation was conducted, but the material before me does not allow me to conclude other than a consideration of merits is a neutral consideration.  The case is not a hopeless case by any means.  There is certainly a prospect of success, but the merits are not of such a level that it would convince me to accept an otherwise unacceptable explanation for the delay.

[23] As to s.394(3)(f) of the Act, fairness between the person and other persons in a similar position, the parties did not raise, I do not believe, any particular issue in response to that particular part. At Exhibit 1 5, the Applicant raised issues about other staff members not being dismissed, undertaking activities for which, as I understood it, she says that they should have been dealt with by way of disciplinary procedures.  This is not a particularly relevant consideration in terms of this matter.

[24] The Respondent submits that per Susan Rose v BMD Constructions Pty Ltd 6, the authorities make it clear that persons in a similar position would not be allowed a further period for the application to be made.  Having considered all those factors, I do not think any particular issue arises under the fairness as between the person and other persons in a similar position.

[25] In conclusion, I am not satisfied that there is an acceptable reason for the delay that weighs against granting the extension of time.  The Applicant became aware of the dismissal when it took effect and this is not in contention.  This is a neutral consideration, as is any action taken by the person to dispute the dismissal.

[26] Overall, I am not satisfied, given the absence of evidence, that there is a prejudice to the employer and I have determined, in conclusion, that I will consider this to be a neutral factor. 

[27] The merits of the application are also a neutral factor.  I am not in a position to determine that the merits are so strong as to otherwise overwhelm an unacceptable reason for the delay. 

[28] There is no particular consideration that arises under s.394(3)(f) of the Act.

[29] Taking into account all of the relevant factors I am not satisfied that there are exceptional circumstances for the delay. As the application was made out of the statutory time period, the application is dismissed. 

[30] An order giving effect to this decision has previously been published in PR580620.

COMMISSIONER

Appearances:

K K Siu on her own behalf for the Applicant

J Kowk for the Respondent

Hearing details:

2016.

Melbourne.

20 May.

Final written submissions:

12 May 2016

 1   Nulty v Blue Star Group (2011) 203 IR 1

 2   Form F3 – Employer Response to Unfair Dismissal Application filed 26 April 2016, Attachment CCSSCI-1 [14]

 3   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299-300]

 4   Exhibit 1, Applicant’s Outline of argument: Extension of time filed 3 May 2016

 5   Exhibit 1, Applicant’s Outline of argument: Extension of time filed 3 May 2016

 6   [2011] FWA 673

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