Lillian Liu v Downton Investments Pty Ltd
[2024] FWC 3084
•7 NOVEMBER 2024
| [2024] FWC 3084 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lillian Liu
v
Downton Investments Pty Ltd
(C2024/7055)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 7 NOVEMBER 2024 |
Application under s 365 made out of time – whether to extend time – applicant’s contention that delay caused by the Commission – application dismissed
This decision concerns an application under s 365 of the Fair Work Act 2009 (Act) made by Lillian Liu. Ms Liu was employed by Downton Investments Pty Ltd (Downton) for a period of 3 weeks and 1 day. She was dismissed on 27 August 2024. Ms Liu alleges that the dismissal contravened the general protections provisions in Part 3-1 of the Act. Downton denies this and says that she was dismissed for poor performance. The Commission’s task in this matter is not to determine the merits of the application, but to decide whether to grant Ms Liu an extension of time. The application was filed on 2 October 2024, outside the 21-day period prescribed by s 366(1). The Commission may grant an extension of time only if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters listed in s 366(2).
As to the reason for the delay in lodging her s 365 application (s 366(2)(a)), Ms Liu said that on 29 August 2024 she lodged an unfair dismissal application, and that the application was ‘held up’ by the staff of the Commission, rather than being submitted promptly to a member. She said that she made several telephone calls to the Commission, including on 16 September 2024, when she learnt that her application ‘had not been processed’. She said that it was not until 26 September 2024 that it was confirmed in a letter that her case had to be closed, and it was only on 30 September 2024 that she received formal notice that her unfair dismissal application had been closed. She referred to these documents as the Commission’s ‘verdict’ on her unfair dismissal application. Ms Liu said that if her unfair dismissal application had been allocated to a member sooner, it could have resulted in an earlier determination of it, which could have allowed her to make the general protections claim within the 21-day time period.
To deal fairly with Ms Liu’s submission it is necessary to examine the notes in the Commission’s electronic case management system (case HQ), which record the following. On 3 September 2024, a staff member telephoned Ms Liu about her unfair dismissal application and said that there was an ‘MEP’ issue; this was a reference to the minimum employment period that must be served before an unfair dismissal application can be made. Ms Liu had been employed for less than a month. The staff member said that Ms Liu could make another type of application instead, the general protections claim; first however she would need to discontinue the unfair dismissal application, because two applications could not be maintained at the same time. This was a reference to the rule in s 725 of the Act. Ms Liu replied that she wanted to proceed with her unfair dismissal application. She asked when a member would contact her, and was told that this would depend on the member’s schedule. On 16 September 2024, Ms Liu telephoned the Commission to ask about the status of her application. She was told by a staff member that the Commission was still waiting for her to make a decision about whether to proceed with the unfair dismissal application. Why Ms Liu was told this is unclear. She had already confirmed that she wanted to continue it. The case HQ notes state that the staff member then ‘reiterated all the information’ to Ms Liu, and that ‘they have decided’ (presumably meaning ‘she’, i.e. Ms Liu, had decided) to proceed with the unfair dismissal application. On 23 September 2024, Ms Liu called the Commission again. A staff member told her that her application might be dismissed but that there were other applications she could make that did not have an MEP requirement, related to workplace rights. Ms Liu said that she was not interested in this and wanted to continue the unfair dismissal application. On 25 September 2024, the unfair dismissal application was referred to Deputy President Clancy, who directed staff to send Ms Liu an ‘MEP letter’ the next day. This stated that Ms Liu appeared not to have met the MEP and that she must now lodge any documents that showed that she had done so. On 30 September 2024, Ms Liu spoke to a staff member about the MEP letter. They discussed general protections claims. Ms Liu then withdrew her unfair dismissal application over the telephone. The same day, Ms Liu was sent a letter confirming this. Ms Liu lodged her general protections claim two days later.
I acknowledge Ms Liu’s frustration at being told on 16 September 2024 that the Commission was waiting for her to decide whether to proceed with her unfair dismissal application, when she had already relayed this decision to a staff member on 3 September 2024. This was an oversight. However, I reject Ms Liu’s contention that this error, or any other conduct of the staff of the Commission, was the cause of her delay in lodging her s 365 application. Already on 3 September 2024, staff of the Commission had put her on notice that there was a problem with the application because she had been employed for less than a month. It was an obvious problem. Ms Liu could have checked this for herself by consulting the extensive information that is available to the public on the Commission’s website. But Ms Liu decided to continue with her application. There was no need for Ms Liu to wait for the Commission’s ‘verdict’ before lodging her s 365 application. She could have discontinued the unfair dismissal application at any time. Of course, there was no determination by the Commission. This would likely have required a brief hearing or conference and would not have occurred for at least another month. The unfair dismissal application ended when Ms Liu finally decided to discontinue it over the telephone on 30 September 2024.
The delay in the lodgement of the s 365 application was the consequence of Ms Liu’s decision to continue with her unfair dismissal application despite the MEP problem, her decision to discontinue it only at a late stage, and her decision to lodge her s 365 application when she did. She could have discontinued the first application and made the second application much earlier but chose not to do so. The staff oversight referred to above was inconsequential. Ms Liu does not have a good or acceptable reason for the delay in lodging her s 365 application. This weighs against an extension of time.
Having been required to review the case HQ notes in order to understand Ms Liu’s argument about her reasons for the delay in lodging her application, it is appropriate that I make some further observations about them. In my view, Downton would have reason to be concerned that staff of the Commission had suggested to Ms Liu that she could make a different application that might avoid the impediment confronting her unfair dismissal claim. The staff of the Commission are Commonwealth public servants who ably assist the Commission (which is comprised of its members – see s 575) to perform its functions. The work of the Commission’s staff includes providing the public with information associated with newly filed applications prior to their allocation to a member. However, it is important that staff not enter into the territory of providing advice. The line between information and advice can be hard to draw. But in this case I consider that the line was clear. Pointing out the obvious MEP problem in the unfair dismissal application was information. Suggesting that Ms Liu could instead lodge a general protections application against Downton was advice. It went beyond providing information because it presented Ms Liu with an alternative legal avenue through which to pursue her former employer. The staff of the Commission, like the Commission itself, must act fairly and impartially, and be seen to do so. This precludes advising a party on its legal options in respect of another party.
Returning to the other mandatory considerations in s 366, I note that Ms Liu took action to dispute her dismissal by lodging an unfair dismissal claim (s 366(2)(b)). This weighs marginally in favour of an extension of time. There is no evidence of any prejudice to the employer (s 366(2)(c)), nor are there any matters relevant to the question of fairness between Ms Liu and other persons in a like position (s 366(2)(e)). I assess these matters as neutral factors.
As to the merits of the application (s 366(2)(d)), I consider that the claim as presently articulated has no prospect of success. Ms Liu said that she had been poorly treated during her employment and that she was dismissed suddenly and without justification. She said that Downton had not complied with certain provisions of her contract. None of these things are indicative of a contravention of the general protections provisions in the Act. In her application, under a heading ‘Family or carer’s responsibilities (s 351))’, Ms Liu referred to an incident in which her mother-in-law was said to have made allegations against her. This was not explained. Ms Liu’s application does not disclose any cogent allegation or case theory as to a contravention of Part 3-1. Downton on the other hand said that it dismissed Ms Liu after only 3 weeks of service because of her poor performance and conduct. The merits of the application weigh against an extension of time, because to extend time would likely waste time by allowing an apparently meritless case to proceed.
Having regard to the considerations in s 366(2), I am not satisfied that there are exceptional circumstances in this case, and accordingly the Commission has no power to extend time. Were one to take the view that somehow there are exceptional circumstances in this case, I would decline to exercise my discretion to extend time, because the claim is such a poor one. The application is dismissed.
DEPUTY PRESIDENT
Hearing details:
2024
Melbourne (by telephone)
7 November
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