Le Cheng Liu v Ivory Group Pty Ltd & Dicker Data Limited
[2018] FWC 7351
•20 DECEMBER 2018
| [2018] FWC 7351 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Le Cheng Liu
v
Ivory Group Pty Ltd & Dicker Data Limited
(C2018/5919)
DEPUTY PRESIDENT DEAN | SYDNEY, 20 DECEMBER 2018 |
Application to deal with contraventions involving dismissal – extension of time.
[1] On 22 October 2018, Mr Le Cheng Liu made an application pursuant to s.365 of the Fair Work Act 2009 alleging that his employment was terminated in contravention of the general protections provisions of the Act.
[2] Mr Liu states in his application that he commenced employment with Dicker Data Limited (Dicker Data) on 30 April 2018 through an employment agency, Ivory Group Pty Ltd (Ivory Group). Mr Liu claims that he was forced to resign on 21 September 2018 following incidents that occurred at the workplace on 19 and 20 September. His application lodged on 22 October 2018 was made ten days outside the 21 day period prescribed by the Act and cannot proceed unless an extension of time is granted by the Commission.
[3] The matter was listed for hearing in Sydney on 4 December 2018 to consider whether to extend time. At the hearing, Mr Liu was assisted by a Chinese speaking interpreter and was granted permission to be represented by Ms T Deegan of Kingsford Legal Centre. Ms V Johnson appeared for Dicker Data. Mr D Spasevski and Mr J Kamoshida appeared for Ivory Group.
[4] The Commission may extend the time period for a general protection application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.366(2) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time.
[5] Section 366 of the Act provides:
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.
[6] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd1 where the Full Bench said:
“[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.”
[7] I now turn to deal the provisions of s.366(2) of the Act.
Reason for the delay
[8] The reasons for the delay relied upon by Mr Liu can be summarised as follows:
1. He filed a general protections application (C2018/5713) on 11 October 2018 (the First application). The First application was made under s 372 of the Act, being a general protections application not involving a dismissal.
2. Upon receiving a notice of listing from the Commission on 15 October 2018, he realised that Ivory Group was the only named respondent to the First application. He wrote to the Commission on the same day and asked to ‘cancel’ the First application and add Dicker Data as a respondent as well as Ivory Group.
3. On Friday 19 October 2018, he was advised by the Commission that his First application was withdrawn.
4. His intention was to amend the First application and not to withdraw it.
5. On Monday 22 October 2018, he filed a new application including Dicker Data and Ivory Group as respondents (the Second application). The Second application was made under s 365 of the Act, being a general protections application involving a dismissal. He made the Second application one business day after he was advised that the First application was cancelled.
6. English is not his first language and this affected his ability to communicate with the Commission. He used the wrong application form initially and then used the word (‘cancel’) in his email to the Commission. He was not aware that the process that he took of adding another respondent would cause him to bring his application out of time. He thought that given the First application was made within time, the second respondent would simply be added as a named respondent to the proceeding.
[9] Dicker Data submits that Mr Liu’s reason for delay does not relate to a language difficulty and does not constitute any extenuating circumstances. It argues that the application is articulated with sufficiently fluency and therefore it can be reasonably concluded that the person who wrote the application (whether Mr Liu or a translator) would understand the instructions of the Commission regarding the lodgement process.
[10] Ivory Group also opposes the extension of time be granted. It submits that after being made aware of the First application, Ivory Group was informed by Mr Liu that he made an error and his application was intended to be brought against Dicker Data only. Accordingly, Ivory Group thought that Mr Liu did not and would not take any action against it.
[11] I accept that Mr Liu intended to amend his application rather than withdraw it, notwithstanding the First application was made on the incorrect application form. Having considered the evidence before me, I am satisfied that Mr Liu has a credible reason for the delay in lodging the present application. This weighs in favour of a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[12] I accept that Mr Liu made a number of attempts to communicate with both Dicker Data and Ivory Group after his alleged dismissal and sought advice from Kingsford Legal Centre.
[13] I find that this weighs slightly in favour of a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
[14] It is submitted on behalf of Mr Liu that there would be no prejudice to Dicker Data and Ivory Group as they have already been put on notice since the First application was lodged and the delay was for a short period.
[15] I am not persuaded that granting an extension of time in this case would result in any prejudice to Dicker Data and Ivory Group. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
[16] For the purpose of determining whether to grant an extension of time, the Commission ‘should not embark on a detailed consideration of the substantive case.’2
[17] Mr Liu’s general protections application relies on the basis that there was ‘adverse action’ taken against him contrary to s.340 of the Act.
[18] Section 340(1) of the Act provides that a person must not take adverse action against another person because that other person has a workplace right.
[19] Section 341(1) defines ‘workplace right’ as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
[20] Section 342(1) sets out the circumstances in which a person is to be considered as having taken adverse action against another person. It provides that adverse action is taken by an employer against an employee if the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer.”
[21] There must be a causal link between the taking of the adverse action against the applicant concerned as a consequence of a workplace right. (see Byrnes v Australian Skills Quality Authority [2018] FCCA 2862 at [22])
[22] Based on the material contained in his application, Mr Liu is faced with a number of challenges. The first is whether there has been a dismissal within the meaning of s.365(a). This is a prerequisite for an application under this section. Second, whether Mr Liu is able to identify any adverse action on the part of the employer in response to the exercise of a workplace right. Finally there is also an issue as to whether the application can be brought against Dicker Data given that s.340 of the Act addresses action taken by an employer, and it is not in dispute that Mr Liu’s employer was Ivory Group.
[23] In his oral evidence, Mr Liu agreed that prior to his resignation, he had never raised any issues relating to his work at Dicker Data with Ivory Group. He agreed that he had never been advised by Ivory Group that he was dismissed. He further agreed that he had not enquired with Ivory Group about alternative employment opportunities. Mr Liu said that he wrote an email to Dicker Data seeking a reference and he started looking for new employment after his resignation.
[24] Ms Deegan submitted that there was an arguable general protections case where Mr Liu exercised a workplace right by removing himself from an unsafe work environment. He was subsequently forced to resign and was in effect dismissed by Ivory Group because he has not been offered any work and not received any pay.
[25] Given the challenges set out above, I consider that there is little merit in Mr Liu’s application. This weighs against an extension of time being granted.
Fairness as between the person and other persons in a similar position
[26] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 3 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’4
[27] Ms Deegan relied on two decisions of the Commission5 which she submitted found the existence of ‘exceptional circumstances’ in situations similar to that of Mr Liu.
[28] A decision to extend time for the filing of a general protections application is discretionary. I am not satisfied that the criteria of fairness as between Mr Liu and other persons in a similar position weighs in favour of him. I therefore find it to be a neutral consideration.
Conclusion
[29] I have considered all of the matters to which my attention is directed by the Act.
[30] On balance, I am not persuaded that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of Mr Liu are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
[31] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
T Deegan for Le Cheng Liu.
V Johnson for Dicker Data Limited.
D Spasevski and J Kamoshida for Ivory Group Pty Ltd.
Hearing details:
2018.
Sydney:
December 4.
Printed by authority of the Commonwealth Government Printer
<PR702808>
1 [2011] FWAFB 975.
2 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
3 [2015] FWC 8885.
4 Ibid at [29].
5 [2015] FWC 380 and [2010] FWA 3939.
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