Mr Xi Hu v Gateway Business Communications Pty Ltd T/A Gateway Business Communications Pty Ltd

[2016] FWC 4143

[2016] FWC 4143

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Xi Hu
v
Gateway Business Communications Pty Ltd T/A Gateway Business Communications Pty Ltd
(C2016/497)

COMMISSIONER RIORDAN SYDNEY, 23 JUNE 2016

Application to deal with contraventions involving dismissal.

[1] This matter was heard and determined by way of an ex-tempore decision on 2 June 2016.

[2] I advised Mr Hu that if he required detailed written reasons then they would be provided. Mr Hu subsequently made such a request.

[3] The reasons below should be read in conjunction with my ex-tempore decision.

[4] Mr Hu was employed as a technician with Gateway Business Communications (Gateway) on 3 December 2014 and terminated 26 October 2015.

[5] Gateway employs 13 employees. Gateway advised Mr Hu that he was redundant due to a downturn in the business.

[6] Mr Hu’s general protections application was lodged on 6 March 2016, some 16 weeks after the statutory time limit for an application of this nature.

[7] Section 366(2) of the Fair Work Act 2009 (Cth), allows the Fair Work Commission (the Commission) a discretion to extend the period for an applicant to bring a general protections application, if the Commission is satisfied that there are “exceptional circumstances” which would warrant such an extension. The Commission must take into account the following 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.

[8] A Full Bench of the Commission in Nulty v Blue Star Group 1 established the principles for the consideration of the term “exceptional circumstances” as follows;

“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.”

Section 366(2)(a) – Reason for the Delay

[9] Mr Hu submitted that his application was delayed because of;

“1. New hire after “financial difficulties” and applicant learnt that later
2. New hire after “genuine redundancy” and applicant learnt that later
3. Failure to offer any employment alternative option or training option at any time, essentially forcing a constructive dismissal
4. Deceptive and discriminative actions during claimed “financial difficulties” and “genuine redundancy” processes, which later revealed only affected the applicant and not any other employee, and not even employees on the same role and title. This could not be learned by the applicant within 21 days, and without tipoffs.
5. Failure to provide redundancy-related documentation until FWC case was lodged.
6. Failure to comply with taxation laws and requests from ATO, even after repeated requests, resulting in direct financial loss for the applicant over extended period
7. The respondent had verbally promised to fix these “mistakes” including taxation code and letter of redundancy, and failed to act on anything over extended time.
8. The respondent’s company sent e-mail broadcast to everyone in Sep 2015, more than a month before the dismissal, suggesting company was in “difficulty” and everyone would be affected, this email had an effect on the applicant.” 2

I have taken this into account.

[10] At the conference, Mr Hu further submitted that the delay was due to him only receiving his termination letter on 11 March 2016. Mr Hu claimed that he then realised that his termination was due to his sick leave record and his complaint of having to work overtime for no remuneration. I am of the view Mr Hu has tried to “invent” general protections scenarios in relation to his sick leave record and his claim for a payment for overtime as the reasons for his termination. I have taken this into account.

Section 366(2)(b) – Action taken by Mr Hu to dispute the dismissal

[11] Mr Hu did not dispute the dismissal. Mr Hu believed that his redundancy was genuinely due to the financial difficulties being experience by Gateway. I have taken that into account.

Section 366(2)(c) – Prejudice to the employer (including prejudice caused by the delay)

[12] Gateway did not make any submissions, nor was there any evidence, that the respondent would suffer any prejudice of an extension of time was granted. I have taken this into account.

Section 366(2)(d) – Merits of the application

[13] In Kornicki v Telstra-Network Technology Group 3 the 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.” 4

[14] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission “should not embark on a detailed consideration of the substantive case” 5 for the purpose of determining whether to grant an extension of time for Mr Hu to lodge his application.

[15] I advised Mr Hu that the evidence points to his termination being a result of genuine redundancy. Mr Hu did not offer any response to the submission by Gateway that the new engineer employed in late January 2016 does not perform any of the work that had previously been performed by him. I have taken this into account.

Section 366(2)(e) – Fairness as between the person and other persons in a similar position

[16] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 6 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”.

[17] I have taken into account that neither party raised the issue of fairness.

Conclusion

[18] I am not satisfied that there any exceptional circumstances in this matter.

[19] I do not accept that a “tip off” from a former colleague provides sufficient reason to extend the application timeframe by a further 16 weeks. Mr Hu’s circumstances were not “out of the ordinary course, or unusual, or special or uncommon”. Mr Hu’s explanation and argument do not provide sufficient reason for the whole of the delay in submitting his application.

[20] The application was dismissed on transcript on 2 June 2016.

COMMISSIONER

Appearances:

Mr A. Hu on his own behalf.

Mr B. Kirkwood on behalf of the respondent.

Hearing details:

Telephone.

Sydney.

2016,

2 June.

 1   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].

 2   Submission of Applicant

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

 4   Ibid.

 5   Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

 6   [2015] FWC 8885.

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