Mr Edmund Hsu v Analog Devices Australia Pty Ltd

[2020] FWC 3346

[2020] FWC 3346

FAIR WORK COMMISSION

DECISION

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

Mr Edmund Hsu
v
Analog Devices Australia Pty Ltd
(U2020/7615)

COMMISSIONER MCKINNON MELBOURNE, 25 JUNE 2020

Application for an unfair dismissal remedy – extension of time to file application.

[1] Edmund Hsu worked for Analog Devices Australia Pty Ltd for approximately 18 years, most recently as Software System Manager. His employment was terminated on 14 January 2020.

[2] Mr Hsu applied for an unfair dismissal remedy on 3 June 2020, four months after the statutory filing window of 21 days expired. The application can only proceed if additional time is allowed to Mr Hsu to file his claim, and only if there are exceptional circumstances. 1

[3] For the reasons that follow, I have decided not to grant an extension of time to Mr Hsu to file his application.

Extension of time

[4] An extension of time can only be granted if there are exceptional circumstances; that is, circumstances “out of the ordinary course, or unusual, or special, or uncommon”. 2 The circumstances “need not be unique, or unprecedented, or very rare”.3

[5] Reason for delay: Mr Hsu has been caring for his wife who has thyroid cancer, requiring him to transport her to and from hospital and appointments and to provide care at home since June 2019. The past year has been a stressful time for Mr Hsu and his family, involving many hospital visits in the context of the COVID-19 pandemic which limited his movements. He felt that talking to his wife about losing his job would make her unhappy and add to her stress, so he did not want to focus on it. As his wife has now started to recover he feels better placed to make the application. These matters help to explain the delay. Mr Hsu also says that he was not assisted by the company’s human resources department leading up to the dismissal and despite speaking with Analog Devices Australia’s Employee Assistance Program for a ‘one hour check’, he was not advised of how to deal with his dismissal. It was only while looking at an updated superannuation fund website in June 2020 that he discovered information about unfair dismissal, prompting him to file the application. Even taken at its highest, I am not persuaded that these matters should weigh in favour of a grant of additional time to make the application. If anything, they indicate that challenging the dismissal was not a priority for Mr Hsu until relatively recently and long after the time for filing expired.

[6] Whether the person first became aware of the dismissal after it had taken effect: Mr Hsu became aware of the dismissal on 14 January 2020 when the dismissal took effect. It is a neutral consideration.

[7] Any action taken by the person to dispute the dismissal: The sequence of events after 14 January 2020 suggests that Mr Hsu took no active steps to seek advice or research his options in relation to unfair dismissal. He happened upon information about unfair dismissal in an unrelated internet search in June 2020 and only then sought to challenge the dismissal by filing the application.Had he not found this information indirectly, it is likely the application would never have been made. Mr Hsu’s passive approach to preservation of his position weighs against a grant of additional time.

[8] Prejudice to the employer (including prejudice caused by the delay): A four month delay in filing the application will likely mean that in any hearing of the matter, recollection of events is tainted by the passage of time. This will cause prejudice both to Analog Devices Australia and Mr Hsu. It weighs against an extension of time.

[9] Merits of the application: Mr Hsu is alleged to have engaged in threatening and abusive behaviour towards a co-worker. The matter was investigated and findings made against him. Mr Hsu says the dismissal was unjust because at the time he was dealing both with a busy workload on top of the stress of caring for his wife following surgery. He says he was assaulted and harassed by the co-worker and any conduct of his own was provoked. The factual matters involved are of a serious nature and the prospects of a successful application depend a great deal on the evidence, the reliability of the investigation and whose account as between Mr Hsu and his co-worker is preferred. As I am not in a position to properly assess the merits of the application, it is a neutral consideration.

[10] Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant factor in this case.

Conclusion

[11] The materials do not establish that there are exceptional circumstances in this case. Caring for a loved one and the stress that this brings is a common experience within the community. The particular care required in this case was not so intensive as to have effectively prevented Mr Hsu from taking part in other important aspects of his life, including by making inquiries about his options in relation to his dismissal. Mere ignorance of the law or a statutory time limit is not an exceptional circumstance.

[12] Even if there were exceptional circumstances, I am not persuaded that an extension of time would be appropriate in this case because Mr Hsu did not take any reasonable steps to preserve his position until well after the time for filing had expired.

[13] The application is dismissed.

COMMISSIONER

Appearances:

E Hsu for himself.

T Lange for the respondent.

Hearing details:

2020.

Melbourne (telephone hearing):

June 22.

Printed by authority of the Commonwealth Government Printer

<PR720503>

 1   Fair Work Act 2009 (Cth), s 394(2).

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

 3   Ibid.