Mr Sen Jie Zou v Curtin University of Technology

[2016] FWC 5221

[2016] FWC 5221

The attached document replaces the document previously issued with the above code on 2 August 2016.

To amend a typographical error.

Associate to Commissioner Saunders.

Dated 15 August 2016.

[2016] FWC 5221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Sen Jie Zou
v
Curtin University of Technology
(C2016/2911)

COMMISSIONER SAUNDERS NEWCASTLE, 2 AUGUST 2016

Application to deal with contraventions involving dismissal – refusal to extend time.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Sen Jie Zou (the applicant) a further period for his general protections application (the Application) to be made.

The jurisdictional objection

[3] On 1 August 2016, a hearing was conducted by telephone in relation to the applicant’s application for an extension of time.

[4] The applicant gave evidence (through an interpreter) in support of his application for an extension of time. The respondent called evidence from its Deputy Director of Human Resources, Ms Jane van den Herik.

Legislative scheme

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following five criteria:

“(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The principles are well established and are set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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.”   

Consideration

Paragraph 366(2)(a) - reason for the delay

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 4 A dismissal can be communicated orally.5

[8] There must be an acceptable reason for the delay in making the general protections application. 6

[9] The applicant must provide a credible reason for the whole of the period that the application was delayed. 7

[10] 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 in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances. 8 In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, the Full Bench explained the correct approach by reference to the following example:9

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

Relevant chronology of events and reasons for delay

[11] The respondent contends that the applicant was not, at any time, an employee of the respondent. It also contends that its contractual relationship with the applicant came to an end on 1 December 2008 in accordance with written notice of termination dated 1 September 2008.

[12] The applicant contends that he was employed by the respondent from January 2005 until February 2015.

[13] Taking the applicant’s case at its highest, the 21 day time period for the applicant to make his general protections application expired on 20 March 2015. 10 Given that the applicant filed his Application on 4 March 2016 and again taking the applicant’s case at its highest, the Application was almost 12 months late.11

[14] In accordance with the principles summarised in paragraphs [7] to [10] above, the delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. In this case and taking the applicant’s case at its highest, that is the period from 20 March 2015 to 4 March 2016. However, the circumstances from the time of the dismissal (27 February 2015, taking the applicant’s case at its highest) must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

[15] The applicant relies on the combination of the following reasons for the delay in filing his Application:

(a) English is the applicant’s second language;

(b) The applicant has been overseas undertaking work for a significant amount of time, which he says has hindered his ability to make an unfair dismissal application;

(c) The applicant alleges that the respondent has not paid him what he is owed for the work he has done for the respondent. The applicant also makes serious allegations of misuse of funding and corrupt activities against the respondent. As a result of these activities and monies not being paid to the applicant, he says he has not had the funds to travel back to Australia and the respondent has not allowed him to come back to Australia. The applicant says it is hard for him to contact the Commission while he is overseas;

(d) The applicant says the respondent required him to work seven days a week in stressful circumstances, including sending students to private colleges and matters being reported to the Australian government. These matters have affected the applicant’s health. The applicant contends that his poor health and his requirement to work seven days a week for the respondent are part of the reason why his Application was filed late. However, the applicant did not tender any medical certificates or reports in support of these contentions;

(e) The applicant says he has had difficulty in contacting relevant people within the respondent’s organisation because some of them have moved into different positions;

(f) The applicant says the respondent has failed to pay superannuation on his behalf; and

(g) The applicant contends that the respondent was only permitted under relevant regulations to contract staff through a foreign company or its own representative office, but neither of these things happened in his case.

[16] Taking the applicant’s case at its highest and accepting the truthfulness and accuracy of each of the matters referred to in the previous paragraph, I am of the view that the applicant’s reasons for the delay of almost 12 months in filing his Application are not out of the ordinary course, unusual, special or uncommon. My conclusion in this regard is reinforced when I have regard to the fact that the applicant filed a claim against the respondent in the Western Australian Industrial Relations Commission on 14 April 2015 in relation to a claim for a benefit under a contract of employment. The matter was heard by Commissioner Harrison on 16 November 2015. The applicant appeared in person at the hearing. Commissioner Harrison dismissed the applicant’s application. On 16 December 2015, the applicant lodged an appeal against that decision. The applicant also contacted the Western Australian Ombudsman in late 2015 or early January 2016 and made a complaint against the respondent. That complaint was dismissed on about 19 January 2016. All of those matters indicate that there was no exceptional circumstance preventing or hindering the applicant from making his Application well before 4 March 2016.

[17] This factor weighs against granting the applicant an extension of time.

Paragraph 366(2)(b) - any action taken by the person to dispute the dismissal

[18] Action taken by the employee to contest the dismissal, other than lodging a general protections application, may favour granting an extension of time. 12

[19] The applicant challenged his dismissal in his application to the Western Australian Industrial Relations Commission, his complaint to the Western Australian Ombudsman, an earlier complaint (made in August 2011) to the Fair Work Ombudsman 13 and his complaints and correspondence to the respondent. This weighs in favour of a finding that there are exceptional circumstances.

Paragraph 366 (2)(c) - prejudice to the employer (including prejudice caused by the delay)

[20] Prejudice to the employer will weigh against granting an extension of time. 14 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.15

[21] A long delay gives rise “to a general presumption of prejudice”. 16 In this case, there was a long delay. However, the respondent has not adduced any evidence of particular prejudice arising from the applicant’s delay in making his Application. In those circumstances, I find that prejudice to the respondent is a neutral consideration.

Paragraph 366(2)(d - merits of the application

[22] In accordance with the usual practice in extension of time applications, there has been no detailed or extensive evidence led concerning the merits of the applicant’s claims. However, the respondent does submit that the applicant cannot succeed because he was not employed by the respondent and the Western Australian Industrial Relations Commission has made a finding in favour of the respondent in that regard.

[23] In circumstances where the decision at first instance of the Western Australian Industrial Relations Commission has been appealed, it would be premature for me to make a finding that the applicant was not employed by the respondent. I simply note that is one of the many issues in dispute between the parties.

[24] In Kornicki v Telstra-Network Technology Group 17the Commission considered the principles applicable to the extension of time discretion under the former section 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 lodgment. 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.” 18

[25] I adopt this approach in relation to my consideration of the merits of the Application.

[26] Because this is general protections application by the applicant, the outcome of his claims, which focus primarily on the detriment and disadvantage he says he has suffered by not being paid what he is owed by the respondent and being treated harshly and unfairly, will depend on the reasons for the respondent’s conduct and whether the respondent’s evidence as to those matters is accepted by any court or tribunal in which any final hearing is conducted. That is, the outcome of the applicant’s claims will ultimately depend on the resolution of factual disputes between the parties concerning the reasons for the respondent’s actions. Those claims have not been tested in any comprehensive way. Accordingly, I consider this criterion to be neutral.

Paragraph 366(2)(e) - fairness as between the person and other persons in a like position

[27] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 19 considered this criterion and said (at [29]) “cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission”.

[28] I am satisfied that the issue of fairness as between the applicant and other persons in a similar position is not a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[29] Having taken into account the matters referred to in paragraphs [11] to [28] above, I am, on balance, not satisfied that there are exceptional circumstances warranting the applicant being allowed a further period for the Application to be made. The applicant’s circumstances were not out of the ordinary course, unusual, special or uncommon.

[30] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application is dismissed

COMMISSIONER

Appearances:

Mr S Zou on his own behalf.

Ms J van den Herik, Deputy Director of Human Resources, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

August, 1.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Section 366(2) of the Act.

 3 [2011] 203 IR 1

 4   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 5   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 7   Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9

 8   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31]

 9   [2016] FWCFB 349 at [31]

 10   That is, 21 days from 27 February 2015 (the last business day of February 2015 and not including 27 February) is 20 March 2016.

 11   That is, 4 March 2016 is almost one year after 20 March 2015.

 12   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 13   This complaint is only relevant if the date of termination is as per the respondent’s contention of 2008. Again, taking the applicant’s case at its highest, I will have regard to this complaint in considering whether the applicant took action to dispute his dismissal.

 14   Ibid.

 15   Ibid.

 16   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556

 17   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 18   Ibid.

 19   [2015] FWC 8885

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