Miss Peng Jin v Bridge Consulting

[2020] FWC 6982

[2020] FWC 6982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Peng Jin
v
Bridge Consulting
(U2020/15844)

DEPUTY PRESIDENT MASSON MELBOURNE, 31 DECEMBER 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Ms Peng Jin (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) which was lodged on 11 December 2020. The Applicant was notified in correspondence dated 3 July 2020 that the termination of her employment with Bridge Consulting (the Respondent) would take effect from 12 July 2020 (the Letter of Termination). 1

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 2 August 2020. The application was therefore filed 130 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[3] By consent of the parties, determination of the extension of time application was decided on the written material filed.

[4] The background to this matter may be shortly stated. The Applicant commenced employment with the Respondent on 26 July 2013 and was engaged as a casual employee and was placed on-hire with clients of the Respondent. Her last assignment for the Respondent, which was as an Integration Engineer with the Ford Motor Company of Australia, commenced on 30 December 2019. The Letter of Offer for that assignment stated that the duration of the assignment was envisaged to continue until 31 December 2020. 2

[5] The Letter of Offer referred to above allowed for termination of the assignment prior to completion by either the Respondent or its client. 3 The client exercised its right to end the contract early due to the Covid pandemic and this was communicated to the Applicant as taking effect from 12 April 2020.

[6] Following completion of the above-referred assignment, the Applicant was then placed on JobKeeper payments for a period of 3 months even though she was no longer on-hired to a client. The Respondent’s stated rationale for this approach, which was applied as a Policy in respect of staff of the Respondent, was to enable the Applicant to maintain an income during the COVID-19 pandemic and allow for the possibility of the Respondent securing a further assignment for her. A further assignment was not identified for the Applicant and she was notified on 3 July 2020 that the termination of her employment and cessation of her JobKeeper payments would take effect on 12 July 2020.

[7] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 4 Exceptional circumstances may 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 can be considered exceptional.5

[8] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[9] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[10] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

Reason for the delay

[11] 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. 6

[12] I apprehend from the Applicant’s material that the following matters are relied on as reasons for the delay in lodging her application;

(i) She sought legal advice regarding her rights following her termination of employment but chose not to pursue that path initially as she says she was advised by the Respondent that she may be offered further assignments.

(ii) As the Respondent made no contact with her subsequent to her dismissal, she concluded that it had not met its commitment regarding securing further assignments for her.

(iii) As the Applicant’s service with the Respondent fell just short of 7 years, she says she was more focused on securing another assignment with the Respondent so as to reach the 7 years’ service mark and thus gain an entitlement to her accrued long service leave.

(iv) The Applicant also says that shortly after her final assignment as an Integration Engineer came to end in April 2020, the same role was advertised by Bayside Group Automotive Recruitment, which she says the Respondent is an associated entity of. She says that she was told by a representative of the Respondent when she enquired regarding the role that the client wanted a ‘work visa candidate’ for the role and not a local resident.

[13] Turning firstly to the Letter of Termination of 3 July 2020, it relevantly stated as follows;

“…………….

We understand that the escalating issue of COVID-19 may be a very stressful and challenging time for many people, so please note that although the employment relationship has finished, we still keep you on our database to be able to communicate any relevant opportunities that become available with you.

……………”

[14] I am satisfied that the above statement contained in the Letter of Termination did not constitute a commitment to find the Applicant a new assignment. It merely indicated an intention to keep the Applicant’s details on the Respondent’s database following her termination of employment. The Applicant’s claim of a ‘commitment’ to secure a new assignment is not supported by the Letter of Termination.

[15] I accept that the Applicant was desirous of maintaining a relationship with the Respondent in the hope of securing a further assignment. There is however nothing in the material filed that reveals any coercive conduct on the part of the Respondent that was taken with the intent to discourage the Applicant from filing her application. The Applicant’s concern to secure a further assignment with the Respondent rather than pursue an unfair dismissal remedy following her dismissal on 3 July 2020, while perhaps understandable, does not adequately explain the delay in the filing of her unfair dismissal application.

[16] As regards the Applicant’s claim that an identical role to that of the Integration Engineer position she had held was advertised by an associated entity shortly after the cessation of her assignment on 12 April 2020, I make the following comments. The Applicant states that she obtained legal advice in the wake of her dismissal and armed with that advice elected not to proceed to file an application for an unfair dismissal remedy at an earlier time. Beyond her stated desire to secure a further assignment and her long service leave accrual, no credible explanation is provided as to why she did not pursue an unfair dismissal remedy at an earlier time in circumstances where she believed she had been unfairly dismissed from her role as an Integration Engineer which she says was re-advertised immediately after the cessation of her assignment.

[17] I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. 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

[18] The Applicant was notified in her JobKeeper Employee Nomination Notice 7 on 27 April 2020 following her assignment ending with the Ford Motor Company of Australia that, she would receive JobKeeper payments “for up to 3 months or until we offer you a new assignment, whichever one is earlier”. The termination of employment was subsequently confirmed in the Letter of Termination dated 3 July 2020 when no further assignment was secured. The termination of employment was stated to take effect from 12 July 2020.

[19] I am satisfied that the Applicant had the full 21 days within which to file her application following her dismissal. The fact that the Applicant had the full period of 21 days to lodge the unfair dismissal application weighs against the Applicant in this case.

Action taken to dispute the dismissal

[20] It is not apparent that the Applicant took any action to contest her dismissal, other than lodging her unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[21] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[22] The Act requires me to take into account the merits of the application in considering whether to extend time. The Applicant contends that she was dismissed by the Respondent to avoid payment of her long service entitlement that was due to shortly arise. She also submits that shortly after her dismissal a job advertisement was placed by an associated entity of the Respondent for the same role that she had held and that she was advised by the Respondent that a work visa candidate was required for the role.

[23] The Respondent says in reply that the Applicant’s on-hire assignment concluded on 12 April 2020 following which she was maintained as an employee on JobKeeper payments for a period of 3 months despite not being engaged on an assignment. When no further assignment was able to be sourced for the Applicant within the 3 month period, her employment was terminated.

[24] 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. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. I do not consider the merits of the present case 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

[25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[26] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[27] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725746>

 1   Letter of Termination dated 3 July 2020

 2   Letter of Offer dated 3 December 2019

 3   Ibid, clause 10

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 5   Ibid.

 6   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/a Richmond Oysters[2018] FWCFB 901 at [39]

 7   JobKeeper Employee Nomination Notice, dated 27 April 2020