Mr Ye Shi v Hutong (Prahran) Pty Ltd
[2024] FWC 3389
•5 DECEMBER 2024
| [2024] FWC 3389 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Ye Shi
v
Hutong (Prahran) Pty Ltd
(C2024/5202)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 5 DECEMBER 2024 |
Application to deal with contraventions involving dismissal – application filed outside 21-day period- exceptional circumstances not found- application dismissed.
On 27 July 2024, Mr Ye Shi made a general protections application under s.365 of the Fair Work Act 2009 (Cth) (Act). Mr Shi was employed as a Head Chef with Hu Tong (Prahran) Pty Ltd (the Respondent). On 24 May 2024, the Respondent was served an Infringement Warning Notice from Stonnington Council with photographic evidence of Mr Shi smoking in the kitchen. On 11 June 2024, he was dismissed from his employment for smoking in the kitchen which the Respondent submits constituted serious misconduct. Mr Shi submits his dismissal was unfair because he was dismissed during a period of sick leave.
Section 366(1) of Act states an application for general protections involving dismissal must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.[1] Mr Shi’s dismissal occurred on 11 June 2024, his general protections application was made 46 days after the dismissal took effect and 24 days after the 21 day time limit. I am therefore required to determine whether a further period of time to lodge the application should be allowed.
The Respondent filed their form F8A on 14 August 2024 confirming the correct legal name as Hu Tong (Prahran) Pty Ltd. I have utilised the discretion in s.586 of the Act to amend Mr Shi’s application accordingly.
Reasons for the delay
The reason for the delay relied on by Mr Shi is that he filed the wrong application. On 27 June 2024, Mr Shi lodged a Form F2 Unfair Dismissal application. Mr Shi consulted with friends prior to filing his unfair dismissal application, he was aware of the 21 day time limit for lodging the application and filed it on time.
In his Form F2 Mr Shi states he was unfairly dismissed because his employment was terminated during a period of sick leave, he was dismissed without having any prior warnings or an opportunity to respond to the alleged misconduct. Mr Shi also submits there were double standards because the Respondent let guests smoke in the VIP room. Mr Shi submits he suspected that the Respondents real reason for dismissing him was because he had obtained details about an illegal worker who had suffered an injury.
On 22 July 2024, Mr Shi received the F3 Employer Response to his unfair dismissal application. On 26 July 2024, Mr Shi obtained and paid for legal advice and based on that advice he lodged his general protections application. Mr Shi was unable to provide any specifics about the lawyer or law firm he had sought advice from and subsequently submitted that he had engaged with the lawyer using WhatsApp. The reasons for the dismissal set out in Mr Shi’s general protections application are essentially the same reasons he relies on in his unfair dismissal application.
Mr Shi submits that he was unable to accurately express the facts of the case, which led to the wrong choice of application being filed. He also submits that language barriers, limited understanding of the laws and regulations also contributed to the wrong choice of application being filed. Mr Shi submits that having no prior experience in dealing with applications made to the Fair Work Commission contributed to him filing the wrong application.
The Commissions records show that on 1 August 2024, Mr Shi was advised by this Commission that he would need to discontinue one of his applications. On that same day Mr Shi sent an email to the Fair Work Commission in which he states:
“Dear officer,
Thank you for your tolerance for my wrong choice. I hereby solemnly apply to you to cancel my F2 application and ask you to help me open a new F8 appeal. By the way, can you refund one application fee? Thanks Ye”
Mr Shi subsequently withdrew his unfair dismissal application and chose to proceed with his general protections application.
In addition to the reasons relied on as to why he filed the wrong application Mr Shi submits his application was delayed because he had sustained an injury prior to his dismissal and that he was both stressed and depressed after being dismissed.
The first reason relied on by Mr Shi is that due to language barriers and his limited understanding of the laws and regulations he filed the wrong application. I accept that Mr Shi had made an attempt to obtain free legal advice prior to filing his unfair dismissal application and was unsuccessful. However, it wasn’t until after he had received the Respondents response to his unfair dismissal application that Mr Shi made a further attempt to obtain legal advice. Mr Shi sought and paid for legal advice and consequently decided to change his application. This is not an exceptional circumstance. Further, I do not accept that the language barriers and an unfamiliarity with the laws and regulations is an exceptional circumstance. It has previously been held by this Commission that ignorance of one’s rights will not usually provide an acceptable explanation for the delay.[2] Further the evidence before me is that without having any prior experience Mr Shi was able to navigate the Commissions website, and lodge both his unfair dismissal and his general protections applications using the tools available on the Commissions website. I also note that the Commission provides interpreter assistance services for individuals wanting to ask questions about forms and processes. I also observe that the general protections application asserts that Mr Shi was unfairly dismissed relying on similar reasons to the unfair dismissal application. It is my view that the unfair dismissal application made by Mr Shi was neither inappropriate nor invalid, Mr Shi could have proceeded with his unfair dismissal application. There is no evidence before me that Mr Shi had at first instance intended on making a general protections application and mistakenly made an unfair dismissal application. After receiving the employer response to his unfair dismissal application and legal advice, he simply decided to change his application. The fact that he chose to seek legal advice after the 21 day period had expired and then subsequently chose to change his application based on that advice is not exceptional and therefore does not warrant an extended period for lodging the application being granted.
For completeness I do not accept that Mr Shi’s medical condition contributed to the delay. The evidence is that Mr Shi had a MRI at Cabrini Health on Friday, 7 June 2024. Mr Shi attended the Royal Melbourne Hospital Emergency Department on Sunday, 9 June 2024 and was declared unfit for work until Sunday, 16 June 2024. Despite being stressed Mr Shi’s medical condition did not prevent him from making his unfair dismissal application on 27 June 2024, nor did it prevent him from completing and lodging a Work Cover claim on or around the 27 June 2024 which he says was from the workplace injury he suffered prior to his dismissal. There is no medical evidence before me that supports a finding that Mr Shi was either medically incapacitated for the period from 16 June 2024, or that his health had deteriorated after his dismissal to the extent that he was unable to lodge his general protections application in time.
The absence of an acceptable or reasonable explanation of the delay weighs against a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.[3]
Mr Shi lodged both an unfair dismissal application and a general protections application. Mr Shi also met with the Respondent on 14 June 2024 to request although unsuccessfully, that he be reinstated to his role. I am satisfied that Mr Shi took action to dispute his dismissal and this weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will go against the granting of an extension of time.[4]
The Respondent submits it would be prejudiced should the Commission allow an extension of time for the Applicant to file the general protections application because it has expended time and resources in responding to Mr Shi’s unfair dismissal application and has subsequently incurred (and continues to incur) legal costs in defending the subsequent general protections application.
The Respondent submits that it should not be put in a position to expend further costs, resources and time on an unmeritorious claim where it is clear that there are no exceptional circumstances justifying the granting of an extension of time to file the general protections application, particularly where Mr Shi was lawfully dismissed.
Whilst I accept that the Respondent is likely to be inconvenienced having to defend a claim brought against it, I do not consider that the Respondent would suffer any prejudice by granting an extension of time. I assess this matter to be a neutral consideration.
Fairness as between the person and other persons in alike position
This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. Mr Shi’s submissions included reference to the engagement of alleged illegal labour and are not relevant to this consideration.
The Respondent relies on a number of decisions including the decision of Deputy President O’Neill, Makot Wol v Multicultural Community Services Geelong Inc[5], submitting it is similar in facts to this matter. Whilst I consider there to be a distinguishing fact being that the Applicant in Makot Wol did not act on any legal advice, I agree that the remaining facts are similar and that exceptional circumstances were not found to exist. My overall consideration in this matter is that this a neutral consideration.
Merits of the application
Mr Shi was dismissed from his employment as head chef on 11 June 2024 effective immediately. The termination letter states that Hu Tong (Prahran) Pty Ltd had received an Infringement Warning Notice from the City of Stonnington alongside photographic evidence of Mr Shi smoking in the kitchen of the restaurant beside plates of food.
On 13 June 2024, Mr Shi wrote to the Respondent apologising for his mistake and reporting that he had suffered a medical issue on the previous Thursday (6 June 2024) and consequently had failed to complete some of his tasks. Mr Shi then requested that he was given another chance.
Mr Shi also contends that there has been a breach of s.358 it appears that Mr Shi has misinterpreted the application of this provision. Mr Shi has not made any submissions that he had been engaged as an independent contractor, he instead alleges that the Respondent engaged in sham contracting by employing illegal workers.
The Respondent submits Mr Shi had been warned about smoking in the kitchen of the Respondents restaurant in April 2024. It submits that a Stonnington Council officer attended the Respondent’s site and served the Notice on the Respondent which attached photographic evidence of Mr Shi smoking in the kitchen alongside plates of prepared food. The respondent submits that Mr Shi is misguided in claiming that the real reason for his dismissal was because the employer allegedly hired illegal labour. The Respondent submits that the assertion is offensive, fanciful and not at all relevant or supported by facts.
Whilst I appreciate that Mr Shi considers his dismissal was unfair a claim under s.365 is not concerned with whether his dismissal was unfair or not. As to Mr Shi’s submissions about the sham contracting arrangements, there is no contention that Mr Shi was engaged and paid as an employee and not a contractor. A highly meritorious claim may persuade the Commission to except an explanation for the delay that would otherwise be insufficient, however the Commission cannot make any finding on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. Whilst I consider Mr Shi’s claim of a breach under s.358 would not succeed, on the limited materials before me I am not able to conclude that there was a breach of s.352 as alleged by Mr Shi. I consider the merits of the case to be a neutral consideration.
Conclusion
Having considered the submissions and evidence of the parties for each of the matters I am required to consider under s.366(2), I am not satisfied that there are exceptional circumstances warranting an extension of time. I have therefore decided to dismiss Mr Shi’s application. An order[6] will be issued to that effect.
COMMISSIONER
Appearances:
Mr Y Shi for himself
Ms E Durack, for the Respondent.
Hearing details:
2024
Melbourne (by Video)
23 July
[1] Section 366(2) of the Fair Work Act 2009 (Cth).
[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1at [14].
[3] [2018] FWCFB 901 at [45].
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67IR 298, 299-300.
[5] Makot Wol v Multicultural Community Services Geelong Inc[2023] FWC 2078.
[6] PR782072.
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