Liangyu (Yuki) Liu v Shirley Robertson Childrens Centre
[2022] FWC 280
•18 FEBRUARY 2022
| [2022] FWC 280 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s. 394—Unfair dismissal
Liangyu (Yuki) Liu
v
Shirley Robertson Childrens Centre
(U2022/948)
| COMMISSIONER MIRABELLA | MELBOURNE, 18 FEBRUARY 2022 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time – circumstances not exceptional.
Ms Liangyu (Yuki) Liu was employed on a casual basis by Shirley Robertson Childrens Centre (the Centre) from 9 July 2012 as a Qualified Casual Educator but since March 2020 she was undertaking predominantly cleaning duties.
The Fair Work Act 2009 (the Act) provides that an applicant for an unfair dismissal remedy must lodge an application within 21 days after their dismissal took effect. However, the Commission may allow a further period for lodgement in exceptional circumstances.
This decision concerns whether I should exercise my discretion to allow Ms Liu a further period of lodgement of her application.
After taking into account the views of Ms Liu and the Centre regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a conference for the matter.[1]
At the conference on 14 February 2022, both Ms Liu and the Centre were self-represented. Ms Liu gave evidence on her own behalf and Ms Tina Papa, the Centre’s Director, gave evidence on behalf of the Centre.
When did the dismissal take effect?
Both in Ms Liu’s Form F2 Application (Form F2) and the Centre’s reply it was acknowledged that the application was made out of time. Subsequently, there was some confusion and disagreement as to when Ms Liu was dismissed.
Ms Liu says in her Form F2 that she was notified of her dismissal and that her dismissal took effect on 10 December 2021 and acknowledges that her application was filed out of time, and listed reasons explaining the lateness. However, she later says in her submission that she did not understand her employment to have ended on 10 December 2021. She says that, instead, on 10 December 2021 Ms Papa told her that she did not want Ms Liu to work for the next week. The Centre agreed that this was the nature of the 10 December 2021 conversation. In oral evidence, Ms Papa said that Ms Liu had been suspended from her employment on 10 December 2021 and dismissed on 15 December 2021. Ms Liu says that she did not comprehend that she was dismissed until 11 January 2022 when Ms Papa advised her via email:
“Unfortunately given the seriousness of the incident and that it had to be reported to DET, we cannot no longer have you working at [the Centre].”
It was the Centre’s evidence that Ms Liu was dismissed by Ms Papa via email on 15 December 2021, which is 5 days later than the date indicated in Ms Liu’s Form F2 and 27 days earlier than the date indicated in Ms Liu’s submissions. This email (the Dismissal Email), sent by Ms Papa to Ms Liu, reads:
“Thank you for your email, unfortunately this doesn’t change our decision regarding your casual employment at [the Centre]. Furthermore, some of this information is incorrect as it was Lucy who handed over Billy to you, informing you “this is Billy” and you replied, “yes Billy’s parents are here” and you took the child to the entrance where you didn’t hand him to any adults at all. Resulting in the child following another parent out of the gate. This is a very serious breach, and you were entirely responsible for this breach of regulation.
I will finalize you pay for hours worked until Friday the 10th December and I will arrange for all of your Long Service Leave entitlements to be paid out as soon as the bookkeeper is able to do it.”
The Dismissal Email was responding to an email sent by Ms Liu on 15 December 2021 in which Ms Liu stated:
“You said will not give me any work from now on. Will not call me to work anymore. I must state that it is totally unfair. This week you are using agency staff and you have stopped my whole week of shifts. That is absolutely unfair to me and my family.”
On 21 December 2021, Ms Liu replied to the Dismissal Email via email, stating:
“With respect to the issue which occurred Friday 10th December I apologise for any misunderstanding experienced by all concerned. I have decided to move on and accept that it would be best in current conditions.
To which, I ask if you could prepare a favourable reference for my new employment application.”
When questioned in oral evidence Ms Liu said that the words “I have decided to move on” as stated in her 21 December 2021 email actually meant “could possibly go out and look for a job”. I do not accept Ms Liu’s reinterpretation of the plain words “I have decided to move on”.
The Centre says that in the 21 December 2021 email Ms Liu accepted that she would not be offered any more shifts and would not be returning to work at the Centre.
On 31 December 2021, Ms Liu sent a further response to the Dismissal Email, saying:
“Hope you are well. I would like to respond to your email dated 15th December.
…
I am the only one lost the job instead of other three staffs.”
Ms Liu was dismissed by the Centre on 15 December 2021 and that she knew on this date that she had been dismissed. In response to a verbal conversation with the Centre, Ms Liu says in an email of 15 December, “you will not give me work from now on … will not call me to work anymore”. If she did not understand at this point that she had been dismissed, the Centre’s reply email of the same day (the Dismissal Email) makes the termination clear. Her email of 21 December acknowledges that her employment was terminated. In her email of 31 December, and specifically responding a second time to Ms Papa’s email of 15 December, she states that “I am the only one lost the job instead of other three staffs”.
Even though Ms Liu’s submissions subsequent to the filing of her Form F2 claimed she was dismissed on 11 January, this date is not included in the Form F2.
Considering all relevant material, I find that the effective date of Ms Liu’s dismissal was 15 December 2021.
On 20 January 2022, Ms Liu applied for an unfair dismissal remedy. Applications of this kind must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Fair Work Commission (the Commission) allows.[2]
To have filed her application within the 21-day period, Ms Liu had to have done so by midnight on 5 January 2022.
Ms Liu’s application was filed 15 days late. The question is whether an extension of time to file the application should be granted. Ms Liu asks the Commission to grant this extension of time (the application). The Centre opposes this request.
Extension of time
Section 394(3) of the Act sets out a range of factors that are to be considered in deciding whether more than 21 days should be allowed for a person to lodge an unfair dismissal application, as follows:
· the reason for the delay;
· whether the person first became aware of the dismissal after it had taken effect;
· any action taken by the person to dispute the dismissal;
· prejudice to the employer (including prejudice caused by the delay);
· the merits of the application; and
· fairness as between the person and other persons in a similar position.
An extension of time can only be granted if there are exceptional circumstances; that is, circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but not necessarily circumstances that are “unique, or unprecedented, or very rare”.[3]
Relevant factors
Reason for the delay: The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an “acceptable” or “reasonable” explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour; however, all of the circumstances must be considered.[4]
The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period.[5]
In her Form F2, Ms Liu cited several matters as reasons for the delay in lodging the application. These included:
· Depression and anxiety;
· Carer duties;
· Language difficulties making it difficult to obtain assistance with her application;
· Inability to get assistance from the Commission; and
· Being afraid to seek assistance because her employer threatened to give her a bad reference.
Ms Liu, in later submissions, changes her position so that the date of dismissal is said to be 11 January 2022, with the effect that the application would have been filed within the 21-day statutory period. In paragraph 16 above, I have found that the date of dismissal was 15 December 2021.
Ms Liu says that after the 10 December 2021 incident she was called to the staff room with all persons involved. She says that Ms Papa aggressively yelled at her to go home immediately and said she would not call her back to work anymore. Ms Liu says that this made her feel very embarrassed and that this had caused her a great amount of distress and grief. She also says that the sudden loss of a job and income had made her incredibly unwell to the point that she went to the doctor and was diagnosed with anxiety and depression. Ms Liu says that the symptoms that she has are constant headaches, dizziness, and loss of self-esteem. Ms Liu says that this has greatly impacted her everyday wellbeing and ability to complete ordinary tasks. Ms Liu provided as part of her submissions two medical certificates and her mental health plan. The medical certificates are dated 20 January and 23 January 2022. Both certificates stated that Ms Liu “is receiving medical treatment for anxiety/depression due to unfair dismissal at work from 10/12/2021 until now”. The mental health plan was dated 9 January 2022 and stated that Ms Liu had been diagnosed with depression.
Ms Liu submits that she has the responsibility as a carer for her 83-year-old mother, who has high blood pressure and chronic leg pain. She also submits that she is the carer for her 8-year-old son who has autism spectrum disorder. Ms Liu says that, through her own illness, she needed to continue her care of her family which had left her exhausted and with very little time for herself.
Ms Liu submits that English is her second language and that she had a difficult time in finding the official sources and materials that she needed. She said that she had to regularly ask her family and friends to direct her to the right avenues and help express her reasons for the unfair dismissal. She said that she also needed to wait for an interpreter when talking to Legal Aid.
Ms Liu says that Ms Papa had called her on 15 December 2021 to verbally berate and abuse her for talking about the incident and threatened and yelled at her to keep quiet or she would give a bad reference about her for her next job. Ms Liu says that this had sent her into panic, and she became scared and nervous about finding help.
Subsequent to the filing of the Form F2, Ms Liu provided additional reasons for the delay. In oral evidence, she said that the main reason for the delay in lodging was that “I was waiting for a reply from Ms Papa. I felt like I still had a chance to go back to work.”
Ms Liu says she was confused as to whether she was actually fired, and that she was waiting for email responses from Ms Papa. She had written several emails during December hoping to discuss and resolve the misunderstanding about the 10 December incident. Ms Liu says that, even though Ms Papa had told her not to come back to work for the rest of the year, she always thought she would still have a job there. It was not until after the new year that it became very real to her that she was without a job and says that she was in fact dismissed on 11 January 2022. I do not accept Ms Liu’s submission that she was confused and that she believed she had been dismissed on 11 January 2022.
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. Ms Liu says that the reasons for the delay were that she was mentally unwell, she had to care for her elderly and chronically ill mother and son with autism, that she was confused as to whether she was actually dismissed in December and that, because English is her second language, she had trouble understanding online resources and was required to wait for availability of an interpreter to obtain legal assistance. There is no evidence that Ms Liu’s carer’s duties changed after her dismissal or beyond the prescribed 21-day period for making an application. Her carer’s duties are an ongoing responsibility, both whilst she was employed by the Centre and after her dismissal. Whilst I appreciate that there are additional challenges for applicants for whom English is a second language, it does not explain Ms Liu’s delay. Ms Liu says that she hesitated to lodge the application because she was afraid the Centre would not give her a reference. The Centre informed her on 21 December 2021 that it was not usual practice to provide written references. This date is within the 21-day period from dismissal and does not explain Ms Liu’s subsequent delay in lodging her application. While I accept that stress accompanies dismissal and that Ms Liu may have been anxious and depressed during some or all of the period of the delay, absent any medical evidence detailing the impact the illness had on Ms Liu’s capacity to lodge the application, I do not accept the explanation as preventing Ms Liu from lodging the application on time or at a time earlier than the date on which this application was lodged.
I am not satisfied that Ms Liu provided an acceptable or reasonable explanation of the delay. Although the circumstances to which Ms Liu refers are difficult ones, I do not consider them to be exceptional.
The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: Ms Liu submits that she did not become aware of the dismissal until 11 January 2022 when she received a final email from Ms Papa stating that she was no longer needed to work at the Centre. Ms Liu says that after the 10 December incident which led to her dismissal, Ms Papa verbally stated that Ms Liu was not to work again. However, she was still rostered on the following week, so she felt she had not been “sacked” after all. The Centre says that the roster was drafted prior to the 10 December incident.
Ms Liu says that she went to work on her rostered day, 14 December, and Ms Papa immediately asked her to go to her office where Ms Liu tried to explain to Ms Papa that it was unfair to blame the entire situation on her, when there were three other staff members involved in the 10 December incident. Ms Liu says that, during this meeting, Ms Papa stated that she did not want her working in the Centre until next year, being 2022 when the Centre reopens. The Centre reopened on 12 January 2022.
Ms Liu says that, even still, Ms Papa had invited her to the 21 December staff party. She says that this confused her further as to whether she was really “sacked”.
On 15 December 2021, Ms Liu sent an email to Ms Papa stating that it was unfair that the Centre would not give her any work or call her to work. Ms Papa followed up with the Dismissal Email.
On the evidence, I am satisfied that Ms Liu was aware she had been dismissed on 15 December 2021. In her email of 15 December 2021, Ms Liu says, “you said will not give me any work from now on”. In response, the Centre confirmed that “unfortunately this doesn’t change our decision regarding your casual employment at [the Centre]” and that they “will finalize you pay for hours worked until Friday the 10th December and I will arrange for all of your Long Service Leave entitlements to be paid out as soon as the bookkeeper is able to do it.” Addressing the dismissal in a later email of 21 December 2021, Ms Liu said, “I have decided to move on and accept that it would be best in current conditions” and she requested a written reference. On 31 December, Ms Liu further replies to the Dismissal Email by stating that, “you had basically sacked me by saying you would take away all my shifts and I was not to come back to work there” and that “I am the only one lost the job instead of other three staffs”. Ms Liu was notified of the dismissal on the same day that it took effect and, therefore, she had the full period of 21 days to lodge the unfair dismissal application. This consideration does not support a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal: Ms Liu submits that she tried to dispute the dismissal on many occasions verbally and via email to Ms Papa. She says these occasions are as follows.
Ms Liu says that on 10 December, after the incident, Ms Papa came to her and yelled at her to go home immediately, without warning or discussion. Ms Liu says that she tried to explain what had happened, and that the incident was not completely her fault, but that Ms Papa told her not to come into work for a whole week.
Ms Liu says that, talking to Ms Papa directly, on 14 December, she went into her office to explain her point of view of the incident and how it was completely unfair for her to take the entirety of the blame. Ms Liu says that Ms Papa stated not to come to work until after the new year. Ms Liu says that because the Centre was not going to reopen until 12 January 2022, she patiently waited for Ms Papa to give her a response.
Ms Liu says that she had emailed Ms Papa on numerous occasions to continue to explain her perspective and how Ms Papa’s decision was unreasonable. These emails occurred on 11, 15 and 31 December 2021.
After the final email from Ms Papa on 11 January 2022, Ms Liu says that she began to call the Commission and Legal Aid for assistance. She says that she was only able to get help from Legal Aid a few days later.
Ms Liu’s evidence, however, also illustrates that she accepted that she had “lost” her job and that she had decided “to move on”.
During this time, Ms Liu says that she was incredibly unwell which also affected her actions.
On the evidence, I find that between 10 December and 15 December 2021, Ms Liu fought to return to work. After receipt of the Dismissal Email and understanding that she had been dismissed she, nonetheless, took steps to dispute it with the objections on 31 December in which she made attempts to be re-employed after her dismissal. Ms Liu’s evidence is that she felt her dismissal was unfair, that she had a mortgage to service, and that she was extremely anxious about not working.
I consider these steps to constitute “action to dispute the dismissal”. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay): It is not in dispute and so I find, in the circumstances, that there would be no prejudice to the Centre if an extension of time were granted.
Merits of the application: The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the application are set out in the materials that have been filed and I do not repeat them here.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. Ms Liu has a prima facie case, to which the Centre raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position: Ms Liu submits that she believes it is unfair that she was the only one who lost her job at the Centre as a result of the 10 December 2021 incident, despite there being three other staff who were also involved. She also submits that Ms Papa has mistreated and dismissed other former employees of the Centre without due process. She also submits that she has been suffering since 10 December 2021 as she has not yet obtained new employment.
These are not relevant matters in considering the fairness as between Ms Liu and other persons.
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. Accordingly, I consider this to be a neutral consideration.
Conclusion and disposition
Having regard to the matters I am required to take into account under s. 394(3), and all of the matters raised by Ms Liu, I am not satisfied that there are exceptional circumstances. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s. 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
COMMISSIONER
Appearances:
The Applicant on her own behalf.
Ms T. Papa for the Respondent.
Hearing details:
2022
Melbourne (video using Microsoft Teams)
14 February.
Final written submissions:
1 February 2022 (Applicant)
8 February 2022 (Respondent)
[1] Fair Work Act 2009 (Cth), s. 399.
[2] Fair Work Act 2009 (Cth), s. 394(2).
[3] Nulty v Blue Star Group (2011) 203 IR 1.
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349, [29]-[31].
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