Mr Hua Shi v Hatlen Investment (Aus) Pty Ltd
[2020] FWC 5879
•17 NOVEMBER 2020
| [2020] FWC 5879 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Hua Shi
v
Hatlen Investment (AUS.) Pty Ltd
(U2020/11749)
DEPUTY PRESIDENT ASBURY | BRISBANE, 17 NOVEMBER 2020 |
Application for an unfair dismissal remedy - Application filed outside time required in s. 394(2) – No exceptional circumstances established – Extension of time to make application refused – Application dismissed.
Background
[1] This Decision concerns an application by Mr Hua Shi (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by Hatlen Investment (AUS.) Pty Ltd (the Respondent). Section 394(2) of the Act requires that such an application is made within 21 days of a dismissal taking effect, or such further period as the Commission may allow under s. 394(3). The application was filed on 30 August 2020.
[2] In his Form F2 Application for an unfair dismissal remedy, the Applicant stated that the termination of his employment took effect on 15 June 2020 and provided a number of reasons as to why the application had not been made within 21 days of that date as required by s. 394(2) of the Act as matters the Commission should take into account in considering whether the application should be accepted out of time. On the basis of the information provided by the Applicant in the Form F2 Application, if the dismissal took effect on 15 June 2020, the application was made 55 days outside the required time, if the dismissal took effect on 15 June 2020.
[3] Correspondence was forwarded to the Applicant from the Chambers of Vice President Catanzariti pointing out that the application had been made outside the required time, and requesting that the Applicant confirm whether he wished to proceed and provide information as to why a further period should be granted. The Applicant responded confirming that he did wish to proceed and elaborating on the matters set out in his Form F2 in relation to why his application had been made outside the required time.
[4] The Respondent in its Form F3 Response objects to the application on the basis that it asserts the Applicant was not an employee and could not therefore have been dismissed. The Respondent further asserts that the Applicant was removed as a Director of the Respondent as a result of a shareholder resolution passed on 3 June 2020, and that the Respondent’s representative at the time sent a letter to the Applicant on 10 June 2020 informing him that he had been removed as a director of the Respondent. The Respondent asserts that if the Applicant relies on these events as constituting dismissal, the application has been made outside the required time.
[5] The matter was allocated to me for determination of whether a further period should be granted for the application to be made. I decided to conduct a hearing and issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether further period should be granted. The Applicant filed additional evidence which was largely in Mandarin. The Respondent tendered a statement of a Mr Vincent Wong, which had English translations of the documents filed by the Applicant appended to it. The Applicant agreed at the hearing that these translations were accurate.
[6] At the hearing the Applicant represented himself. The Respondent sought permission to be represented by Mr Andrew Gray of King Wood Mallesons, and this request was not opposed by the Applicant. Permission was granted for the Respondent to be represented by a lawyer on the basis that the matter involves issues of complexity and I was satisfied that representation would enable the matter to be dealt with more efficiently having regard to its complexity, and given the language difficulties faced by the Applicant and Mr Wong. A Mandarin interpreter was organised who provided assistance to the Applicant and Mr Wong who gave evidence for the Respondent.
[7] Matters were complicated at the hearing on the basis that the Applicant changed position and asserted in his oral evidence that his dismissal did not take effect until 19 August, when he sought advice from a lawyer who explained to him that he had been dismissed. The Applicant said he did not understand that he was dismissed until this time. On that basis, the Applicant argued the application was not actually made outside of the timeframe in s.394(3) of the Act.
[8] It is therefore necessary to consider when the alleged dismissal took effect and if it took effect more than 21 days prior to the application for an unfair dismissal remedy was made, whether a further period in which to make the application should be granted. It is not necessary that I determine whether the Applicant was dismissed and this Decision does not concern that matter.
Evidence and submissions
[9] As previously noted, in his Form F2 Application, the Applicant identifies that the application has been made outside the time allowed under s. 394(3) of the Act and explains the delay as follows:
“1) I am not familiar with Australian Unfair dismissal Law since I am a newly immigrant.
2) Due to the COVID-19 situation, it is very difficult and inconvenient to contact the previous manager in time to get some relevant documents as
evidence for my claim.”
[10] On 3 September 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day time frame allowed under s. 394(2) of the Act and that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there are exceptional circumstances for not lodging the application in time. The correspondence also set out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the Act.
[11] On 7 September 2020, the Applicant responded to Vice President Catanzariti’s correspondence confirming that he wished to proceed with the application and citing the following matters as being exceptional circumstances:
• I was notified by a letter from a lawyer acting for Hatlen on 18 June that I was removed as a Director of Hatlen Investment (Aus.) Pty Ltd;
• I did not get any formal notification about my dismissal until this date;
• I was never paid my “overdue salary” or notified I was fired so I had no idea of when “the dismissal was exactly issued”’
• I waited for many days to hopefully get any update from Hatlen, but none was received;
• I was not familiar with the policy and right in Australia as I am a new immigrant and had no idea I could seek help from the Fair Work Act;
• After receiving no communication from Hatlen I made an appointment with a lawyer on 23 June 2020 who told me I should sue Hatlen directly;
• After contacting my lawyer a second time I was told he was too busy to help me;
• I sought advice from a second and a third lawyer who told me to submit the dismissal application to the fair work to state my claim and was confused at the different advice received from my lawyers; and
• I had to collect “corresponding evidence” before I submitted my application.
[12] The Applicant filed a statement in support of his application for an extension of time. The Applicant’s evidence is that he commenced an alleged employment relationship with the Respondent on 20 January 2017. On his Form F2 application, the Applicant stated that no reasons were given for his dismissal and that his dismissal was unfair for the following reasons:
“1. Hatlen’s shareholder is KANGDA INVESTMENT (HONG KONG) COMPANY LIMITED. The shares of KANGDA INVESTMENT were transferred to Sharp Profit Investment Limited on April 3, 2019. After obtaining the controlling rights, the latter shareholder maliciously kicked out most of the managers and other employees in KANGDA INVESTMENT and its subsidiaries, which have induced many labor compensation and salary lawsuits in China.
2. As for my personal case, in early this year the Executive Director of KANGDA INVESTMENT named Yujie LIU, who was responsible for dealing with some related legacy issues of Hatlen, e.g., the postponed payment to me during the past three years. She told me that my salary should be $9000/Y and this was the only amount they were willing to pay me.
However, I did not agree as my salary was determined when I was employed and should not be changed objectively based on the Director’s willing. And I should have been paid on time rather than paid lingeringly even less than the negotiated amount ($30000/Y) when I was employed. Furthermore, I have not received any formal notices/documents regarding my dismissal and salary payment since then.”
[13] The Respondent is a wholly owned Australian subsidiary of Kangda Investment (Hong Kong) Company Limited (Kangda). The uncontested evidence of the Respondent is that the Respondent is an investment holding company and does not carry on any business or have any operations in Australia.
[14] At the hearing, the Applicant’s evidence was that on 16 June 2020, he received a letter dated 11 June 2020 from the Respondent’s legal representative, Lim Whalen & Co Limited, informing him that he had been removed as a director of the Respondent. The letter states as follows:
“Dear Sir/Madam
RE: REMOVAL OF DIRECTORS OF HATLEN INVESTMENT (AUS.) PTY LTD (“THE COMPANY”)
We act for the Company.
On 3 June 2020, the sole shareholder of the Company, Kangda Investment (Hong Kong) Company Limited (“the Sole Shareholder”) by way of a Circulating Resolution dated 3 June 2020 a copy of which is enclosed (“the Circulating Resolution”) resolved as follows:
1. That FUDONG LENG be removed as director of the Company;
2. That HUA SHI be removed as director of the Company;
3. That WING HONG CHENG be removed as director of the Company;
4. That DAVID GARRY be appointed as a director of the Company; and
5. That Wan Sing Wong be appointed as directory of the Company.
In the same Member’s Resolution, the Sole Shareholder has directed the Company to lodge any documents with the Australian Securities and Investment Commission and to do all things necessary to give effect to the Circulating Resolution.
You are no longer a director of the Company and as such do not have any right to possess or retain any information and records related to the Company. You are directed to deliver all records and information of and related to the Company in your possession and if not in your possession to direct any third party to deliver such information to us “the Company Records and Information”), in particular the ASIC corporate key of the Company.
Please arrange for all Company Records and Information to be delivered to our office by no later than 5.00pm, 17 June 2020.
Yours faithfully,
LIM WHALEN & CO”
[15] The Applicant stated he received this letter on 16 June 2020, but did not understand that he was being dismissed by the Respondent as he received no other information from the Respondent as to whether or not he was “formally fired” or whether there would be other arrangements for him. I asked the Applicant at the hearing to clarify when he received the letter, in light of the fact that he had stated on his application that he was notified of his dismissal on 15 June 2020, and the Applicant agreed that he received the letter on 15 June 2020.
[16] The Applicant said that after he received the letter on 15 June 2020, he sought legal advice from a lawyer on 21 June 2020. The Applicant said this lawyer advised him that he should seek recovery of his unpaid salary through legal channels but that he would require evidence to do so.
[17] The Applicant said that to get this evidence, he needed to speak to other managers and get signed statements, and that this took additional time due to the COVID-19 Pandemic and because other managers had also been dismissed. After collecting this evidence, the Applicant met with his lawyer again on 13 August 2020, when his first lawyer told him that he was too busy to assist the Applicant any further and that the Applicant should engage another lawyer.
[18] The Applicant then sought advice from a second lawyer on 19 August 2020, who told him that his employer had removed him without notice and without paying his unpaid salary, and that this amounted to unfair dismissal.
[19] In response to a question from me about why the Applicant had put on his Form F2 application that his dismissal took effect on 15 June 2020, the Applicant said there were actually two dates, on the first date being 15 June 2020 he was advised by letter that he was being removed as a director, but that it wasn’t until the second date being 19 August 2020 when he met with his second lawyer that he learned that he had been dismissed.
[20] At the hearing I asked the Applicant to clarify how and when he asserted he was dismissed, and the Applicant said that he was dismissed on 19 August 2020 when he met with the second lawyer, which was when he came to be aware that he had been unfairly dismissed. The Applicant also accepted at the hearing that essentially he was asserting the main reason for the delay was that when he was removed as a director he didn’t understand his alleged employment relationship was also being terminated, and didn’t understand this until he met with his second lawyer on 19 August 2020.
[21] In response to a proposition from me that what the Applicant was really seeking through his unfair dismissal application was what he asserted was an unpaid salary for the entire period of his employment, the Applicant said there were two things. The first was his unpaid salary and second thing was that a manager called Ms Du Juan said to him that there would be future arrangements for him, and that this had affected his future plans.
[22] The Applicant also tendered a number of emails exchanged with Mr Wong and Ms Du Juan. The emails are dated as being sent between 16 October 2019 and 20 January 2020. The Applicant asserted these emails showed Ms Du Juan had “admitted the employment relationship” between the Applicant and the Respondent but that Ms Du Juan had not said anything about his removal as a director. The Applicant said the emails with Mr Wong showed that Mr Wong told the Applicant that Kangda planned to change the director of the Respondent, but did not tell the Applicant that he would removed as a director.
[23] The Applicant also tendered a document described as an “inner/approval file of Kangda Group the shareholder of the Respondent”. The subject of this document translated to English reads Request for instructions and explanation regarding the engagement with Shi Hua as company director/secretary of Hatlen. I asked the Applicant where this document stated he was an employee of the Respondent, and the Applicant said the document stated he was employed.
[24] I also put the proposition to the Applicant that all the document stated was that the Applicant was engaged as a Director and would be paid a fee or a salary. In response, the Applicant said he could submit more evidence from previous managers.
[25] The Applicant also asserted the Respondent had not provided him with the contract so that he could demonstrate an employment relationship, despite making several requests for this contract. The Applicant also alleged a Mr Fudong Leng told him he was an employee of the Respondent. Mr Leng was also removed as a director at the same time the Applicant was. The Applicant also tendered a screenshot of text messages between him and Mr Leng, which are dated as being exchanged between 20 June and 21 June 2020.
[26] The Applicant also submitted another reason for the delay was that the Respondent had assets in China which were subject to an acquisition which was still in process, and that the Applicant was also confused over which entity employed him.
[27] I put the proposition to the Applicant that all the documents he referred to showed was that he was disputing the amount of salary he should be paid as a director and not that he was disputing that he was an employee of the Respondent. The Applicant said that his employment contract was not provided to him and that there was confusion not about his removal as a director but confusion about his employment status and when future arrangements would take place.
[28] The Applicant also accepted that while a reason relied upon for the delay was that he was collecting evidence from other managers in China which was also delayed by the COVID-19 pandemic, he had not actually filed any statements of evidence when he filed the application on 30 August 2020. The Applicant said this was because he reviewed the statements and was not sure whether they were valid in Australia.
[29] Mr Wong was asked in cross examination why he had not told the Applicant he was being removed as a Director, and Mr Wong said that this was not necessary, and it was the shareholders right to remove him. Mr Wong clarified in re-examination that lawyers for the Respondent did inform the Applicant of his removal as a director in the letter sent on 11 June 2020.
[30] In closing submissions Mr Shi asserted that as he did not realise he was dismissed until 19 August 2020 when he saw his second lawyer his application was not actually made outside of the 21 day timeframe. Mr Shi also submitted that he was an employee and even though he did not have a copy of his contract, that there were other people who could assist him to prove this.
[31] The Respondent submitted there are no exceptional circumstances in any of the reasons for the delay advanced by the Applicant. It was plain the Applicant was notified by letter on 11 June that he was being removed as a director which the Respondent submitted was acknowledged by Applicant in his statement filed on 7 September 2020.
[32] The Respondent also submitted that the Applicant did not file the application until 30 August 2020, and that even if the Applicant did not find out that he had dismissed until 19 August he still took an additional 11 days to file the application. Further, the Respondent submitted the Applicant was the sole Australian Resident director of the Respondent, which has no business activities in Australia and the Applicant has put no evidence forward that he was in an employment relationship, only that he held the office of director.
The date the alleged dismissal took effect
[33] As a Full Bench of the Commission held in Ayub v NSW Trains, in respect of a dismissal without notice, s. 394(2) is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed, and it is in that sense that a dismissal has been communicated to the employee. 1
[34] In the present case, the action that the Applicant relies on as a basis for asserting that he was dismissed is his removal as a Director. It was the letter which prompted the Applicant to seek his unpaid salary and to consult lawyers. I am also of the view that the Applicant’s evidence establishes that he was seeking entitlements as an employee from the time he received that letter on 15 June 2020. There is no evidence of any relationship between the Applicant and the Respondent other than the Applicant being a Director of the Respondent. If that relationship was an employment relationship it ended on 15 June 2020 when the Applicant was terminated as a Director.
[35] I am satisfied that the Applicant knew that the relationship which he claimed to be an employment relationship ended on 15 June 2020. This is consistent with two contemporaneous written statements made by the Applicant both in his Form F2 Application (which is a declaration) and in response to correspondence from the Chambers of Vice President Catanzariti dated 7 September 2020, which was also tendered as the Applicant’s statement at the hearing. Further, on the Applicant’s evidence, the Form F2 Application was completed after he had obtained legal advice on 19 August which he asserts was the first occasion that he was made aware that he had been dismissed. The Form F2 is therefore more likely to be accurate. In my view these statements are contemporaneous and accurately reflect the Applicant’s belief that he had been dismissed at that point.
[36] I also found the Applicant’s oral evidence in relation to why he changed position about the date his dismissal took effect, to be unconvincing. On this basis I find that the Applicant was removed from his role as a Director of the Respondent on 3 June 2020. This is the event that the Applicant relies on as a basis for his unfair dismissal application. I further, find that for the purposes of making that application the putative dismissal took effect on 15 June 2020 when it was communicated to the Applicant. Accordingly the Applicant’s unfair dismissal application was made 55 days outside the time required in s. 394(2) and it is necessary to consider whether the discretion in s. 394(3) should be exercised in order to grant the Applicant a further period in which to make that application.
Whether a further period should be granted for the application to be made
The approach to deciding whether a further period should be granted
[37] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
[38] The approach to deciding whether there are “exceptional circumstances” in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
• out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.2
[39] 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.3
[40] The assessment of whether “exceptional circumstances” exist requires a consideration of all of the relevant circumstances and no one factor need be found to be exceptional in order to enliven the discretion to extend time. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):
“[39] …each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.”4
[41] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.5 However, the circumstances from the time of the dismissal must also be considered and ultimately a decision made as to whether those circumstances are exceptional circumstances.6 Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.7 I turn now to consider each of the matters in s.394(3) of the Act.
Reasons for the delay – s.394(3)(a)
[42] As previously noted, the delay which must be considered in determining whether to extend time for making an application is the period beyond the prescribed 21 day period. In the present case, the period of the delay is 55 days. In summary, the reasons for the delay advanced by the Applicant are that he was not aware of his dismissal until 19 August 2020 when he consulted a second lawyer after being told that his original lawyer could not assist him. The Applicant also states that he is a new migrant and is unfamiliar with Australian employment laws and that he was seeking advice from a number of lawyers. The Applicant further contends that he was obtaining statements from persons in China. I note that there were no statements filed with the Form F2 Application and this is not a reasonable explanation for the delay.
[43] I do not accept that other matters advanced by the Applicant provide a reasonable or acceptable explanation for his lateness in filing his unfair dismissal application. I do not accept that the letter the Applicant received on 15 June 2020 informing him that he had been removed as a Director of the Respondent was ambiguous and the Applicant knew on that date that whatever the nature of his relationship with the Respondent was, that relationship had been terminated.
[44] The Applicant’s oral evidence was that he first sought legal advice on 21 June 2020 where he was advised to collect evidence and sue the Respondent directly. It is clear that the issue the Applicant was pursuing was that he had not been paid a salary to which he claims to be entitled. This evidences that the Applicant was pursuing a claim based on the assertion that he was an employee. The Applicant then attempted to collect evidence which he says was delayed due to the COVID-19 pandemic. The Applicant saw his lawyer again on 13 August 2020, where he was advised that his lawyer was too busy to assist him. By this point, the Applicant was already well out of time, given that the application was required to be filed by 4 July 2020.
[45] The Applicant then waited until 19 August 2020 when he states that he was advised by a second lawyer that he had been unfairly dismissed. Even if it is accepted that the Applicant did not know he had been dismissed until 19 August 2020, he has failed to explain why it took him another 11 days – until 30 August 2020 – to file his unfair dismissal application.
[46] The Applicant has not provided an acceptable or reasonable explanation for any part of the delay in filing his unfair dismissal application in respect of the period from 4 July to 30 August 2020. This is a matter that weighs against a further period being granted.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[47] For reasons set out above, I am satisfied and find that the Applicant became aware of his alleged dismissal on 15 June 2020. It is not in dispute that the Applicant was informed by letter that the Respondent had terminated his directorship of the Respondent on 15 June 2020. The Applicant’s evidence that he was not aware that his removal as a Director was also the end of what he contends was an employment relationship until he saw a second lawyer on 19 August 2020 is not credible, for the reasons set out above.
[48] I also did not find the Applicant’s evidence that Ms Du Juan had told him he was actually an employee of the Respondent to be credible, or that the Applicant had contested that he was in fact an employee prior to his removal as a Director. The Applicant’s reliance on a number of emails exchanged with Ms Du Juan, and Mr Wong did not establish his assertions. The English translations of these emails, as well as translations of company documents, show that the Applicant disputed the amount of salary he was being paid as a Director. None of the documents tendered by the Applicant demonstrate that Applicant could have reasonably believed that after being informed of his removal as a Director on 15 June 2020, an employment relationship continued beyond that point.
[49] At best, this is not a matter that weighs in favour of a further period being granted and is a neutral consideration.
Any action taken by the person to dispute the dismissal – s.394(3)(c)
[50] There is no evidence that the Applicant took any steps to dispute his alleged dismissal, beyond seeking legal advice. The Applicant’s own evidence is that he waited many days for the Respondent to provide further information about his unpaid salary, but did not contact the Respondent to contest his dismissal. This is not a matter that weighs in favour of a further period being granted and is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay) – s.394(3)(d)
[51] I cannot identify any prejudice that would accrue to the Respondent, other than the usual prejudice of being required to defend the application if I decided to allow a further period within which the application could be made. While the delay is considerable, it is not so extensive that there would be any difficulty involving recollection of events or availability of relevant witnesses. By itself the absence of prejudice does not warrant a conclusion that there are exceptional circumstances nor provide a proper foundation to grant an extension of time under s.394(3) of the Act. However, the absence of prejudice does favour the Applicant, and weighs in favour of a further period being granted.
The merits of the application – s.394(3)(e)
[52] In the matter of Kornicki v Telstra-Network Technology Group8 the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”9
[53] After considering the material filed by the parties it is clear that there are factual disputes between the parties. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success.
[54] The application is met with a jurisdictional objection on the basis that the Applicant was not an employee. Whether that objection would succeed could only be determined at a hearing. I also note that the Applicant provided the following response on his unfair dismissal application in relation to the outcome he was seeking:
“The employer has never paid me any agreed salary since I was employed, which was $30,000/Y, and unreasonably kicked me out without addressing the unpaid issue properly. I would like to get my legitimate payment back (total=$105,000) and termination indemnity according to the Australian Unfair Dismissal Law.”
[55] Further, the Applicant also stated in his statement of 7 September 2020 as follows:
“To summarise, the truth is obvious that HATLEN owes me more than 3-year overdue salary and dismissed me stealthily and unethically. I do not prefer to file a lawsuit because it costs me much and also wastes the social resources. Consequently, I sincerely expect and will be very appreciated if you could accept my application and help with my claim.”
[56] It appears that much of the Applicant’s complaint in making this application relates to his unpaid salary. The Applicant also states that he does not wish to file a lawsuit due to the cost and it is implicit that he views the unfair dismissal application as a mechanism to obtain what he claims to be unpaid salary. This is an outcome that can only be obtained from a Court and the Applicant can seek such an outcome regardless of whether he is granted a further period in which to make his unfair dismissal application.
[57] It appears the Applicant is claiming relief that is not available in an unfair dismissal application is a matter to which I attach some weight. In these circumstances, merit weighs against a further period being granted, albeit not significantly.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[58] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.
[59] There are no other employees of the Respondent in the Applicant’s position. Further, the parties have not raised other cases where the facts are similar and where extensions of time have or have not been granted. Accordingly, this matter is a neutral consideration.
Conclusion
[60] Having regard to the matters I am required to take into account under s. 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or together. There is no satisfactory explanation for the delay. While there is an absence of prejudice to the Respondent, the Applicant did not take steps to dispute his alleged dismissal but rather sought entitlements said to arise from his claim to have been in an employment relationship with the Respondent. It is also relevant that the Applicant is seeking a remedy in the form of payments arising from the period he claims he was employed by the Respondent, which is not available in the unfair dismissal jurisdiction.
[61] The application for a further period is refused and the Applicant’s unfair dismissal application must therefore be dismissed. An Order to that effect will issue with this Decision.
DEPUTY PRESIDENT
Appearances:
The Applicant on his own behalf.
Mr A Gray of King Wood Mallesons for the Respondent.
Hearing details:
25 September.
2020.
By telephone.
Printed by authority of the Commonwealth Government Printer
<PR724217>
1 [2016] FWCFB 5500.
2 Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
3 Nulty v Blue Star Group [2011] FWAFB 975.
4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] – [39].
5 Stoginniadis op. cit. at [22].
6 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
7 Ibid at [15].
8 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
9 Ibid.
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