Mr Zhan Gao v Tin Staffing Services T/A Tile Importer

[2019] FWC 5477

[2019] FWC 5477

FAIR WORK COMMISSION

DECISION

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

Mr Zhan Gao
v
Tin Staffing Services T/A Tile Importer
(C2019/2580)

DEPUTY PRESIDENT CROSS SYDNEY, 13 SEPTEMBER 2019

Application to deal with contraventions involving dismissal.

[1] On 17 April, 2019, Mr Zhan Gao (“the Applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant was employed by Tin Staffing Services T/A Tile Importer (“the Respondent”). The Applicant commenced employment with the Respondent on 23 February, 2015, and claims his employment was terminated by the Respondent on 9 March, 2019. The Respondent, on the other hand, claims that the Applicant verbally tendered his resignation on 8 March, 2019.

[2] General Protections applications involving dismissal must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (“the Commission”) may allow.  If the dismissal took effect on 9 March, 2019, an application for a remedy should have been lodged by no later than 31 March, 2019. The application was therefore lodged outside of the time prescribed and was, in effect, lodged either 17 or 18 days after the last day on which such an application could have been made.

[3] On 15 May, 2019, I convened a Directions Hearing to outline the manner in which the Applicant’s Application be allowed an additional period within which to lodge his Application would be determined. By consent, the Applicant and the Respondent agreed to a timetable for the filing of Outlines of Submission addressing the application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant and the Respondent also agreed that the application would be determined upon the materials filed. In the Directions Hearing, the Applicant and the Respondent were specifically directed to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act, as outlined below.

[4] I have determined that the Applicant should not be allowed a further period within which to lodge his application. These are the reasons for that decision.

[5] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are

exceptional circumstances, taking into account:

(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] It is clear from the structure of s.366(2) that 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 show exceptional circumstances.

[7] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.366(2) of the Act that there are exceptional circumstances.

THE FACTS

[8] Although the events leading up to the Applicant’s cessation of employment are largely disputed, the following events occurred:

(a) On 8 March 2019, the Applicant engaged in a dispute with the Respondent arising out of a customer policy in relation to the selling of flooring. According to the Respondent, the Applicant verbally tendered his resignation and this was accepted by the Respondent. The Applicant however claims that he had simply inquired with the Respondent as to the company’s termination procedure. The Applicant claims that he advised the Respondent that he would confirm his decision as to his resignation by 12 March, 2019.

(b) On 9 March 2019, the Applicant sought, by way of email to the Respondent, a reduction in his working hours. This request was denied by the Respondent. It is on this basis that the Applicant claims that the cessation of his employment had occurred.

(c) On 25 March 2019, the Applicant lodged an unfair dismissal application with the Commission.

(d) On 16 April 2019, the Applicant’s unfair dismissal application was conciliated by a conciliator at the Commission. During the conciliation, the Applicant verbally discontinued his unfair dismissal application.

(e) On 17 April 2019, the Applicant filed a Notice of Discontinuance in respect of his unfair dismissal application. The Applicant then lodged a general protections application with the Commission on same date.

THE EVIDENCE

[9] Both the Applicant and the Respondent complied with the Directions for the filing of evidence. In particular:

(a) On 21 May, 2019, the Applicant filed an outline of Submissions (“the Applicant’s Submission”), together with annexures;

(b) On 7 June, 2019, the Respondent filed an outline of Submissions (“the Respondent’s Submission”); and

(c) On 13 June, 2019, the Applicant filed a reply Submission (“the Applicant’s Reply”), together with annexures.

[10] On 14 August, 2019, the Applicant further filed an Employment Separation Certificate issued by Centrelink outside of the Directions.

CONSIDERATION

[11] I will then turn to the particular matters to which regard must be had.

(a) The Reason for the Delay

[12] The reason for the delay was that the Applicant was not aware of the statutory time limitation for filing a general protections application. The Applicant submitted that during the conciliation of his unfair dismissal claim, the conciliator had suggested that he abandon his unfair dismissal claim and instead pursue a general protections application. The Applicant claims that while he was originally not aware of the time limitation, once was made aware, he “acknowledged that, [and he] promptly applied for it”.

[13] Relying on the Full Bench decision of Cheyne Leanne Nulty v Blue Star Group 1, the Respondent submitted that the Applicant’s knowledge, or lack thereof, would not constitute “exceptional circumstances”. The Respondent further submitted that information as to lodging an application is quite readily available and accessible on the Fair Work Commission’s website and that, on the balance of probabilities, the Applicant would have known about the limitation, or at least had access to such information, when lodging his unfair dismissal application.

[14] The Applicant, in reply, submitted that he had originally filed an unfair dismissal application as he “strongly believe[ed] that [he] was dismissed unfairly”. The Applicant submitted that following the conciliation of his unfair dismissal claim, the Applicant “meticulously researched” the differences between unfair dismissal applications and general protection applications and made enquiries with the Fair Work Ombudsman.

[15] I am not satisfied that the Applicant’s explanation here would satisfy “exceptional circumstances”. All relevant material and information pertaining to lodging the various types of applications are readily available from the Commission’s website. It is quite likely that the Applicant had access to these when originally determining which application to file.

[16] For the reasons above, this consideration weighs against granting an extension of time in favour of the Applicant.

(b) Any action taken by the person to dispute the dismissal

[17] In addressing this consideration, Applicant submitted that he had adhered to his “employment agreement, Fair Work Act, meticulously and progressively defined [his] employment right”.

[18] The Respondent, in their outline of Submission, submitted the following:

“There was no delay on the part of the Respondent that adversely impacted on the Applicant’s timely application. The Applicant promptly lodged a s 394 application. This put the Respondent on notice that the Applicant disputed the termination of his employment”.

[19] The Applicant, in reply, submitted that if he had been aware of the time limit, he would have “expedited the compliant at the earliest day”. The Applicant further submitted that “if the respondent acted timely, [he] would have submitted the application earlier”.

[20] While the Applicant failed to directly address this consideration, I must take into account the fact that the Applicant had originally lodged an unfair dismissal application with the Commission prior to his general protections application. As such, this would constitute as an action to dispute his dismissal and would weigh in favour of granting the Applicant an extension of time.

(c) Prejudice to the employer

[21] The Applicant, in his outline of Submission, submitted that the delay in filing his application out of time would not prejudice the employer on the bases that he was courteous enough to put the Respondent’s interests and business requirements above his own, as well as the claim that he was not given an opportunity to respond to his dismissal.

[22] The Respondent submitted that granting the Applicant an extension of time would prejudice the employer as the Respondent would, as a result, incur further costs simply because “the Applicant [had] opted to cease his initial course” and “forum shop”. These factors would adversely affect the efficiency in the way proceedings before the Commission are conducted.

[23] In reply, the Applicant, while not directly addressing this criterion, submitted that employees were treated like a “lamb to the slaughter”. By referring to his “correspondences, personal references, and recent an email” … the Applicant refuted that he was a vexatious litigant, as put by the Respondent. The Applicant then again relied on the allegation that he was not given an opportunity to respond to his dismissal.

[24] In addressing this consideration, the Applicant fails to establish any logical connection in his responses for the relevant consideration. The Applicant’s claim that he was not given an opportunity to respond to his dismissal, or how courteous he claims to be, are neither relevant to this consideration. Rather, it appears to me that he uses this criterion to attack the Respondent and the conduct of the business. On the other hand, I am satisfied that the Respondent would indeed be financially disadvantaged by defending another claim put by the Applicant, particularly as it was the Applicant’s own choosing to discontinue his own unfair dismissal application.

[25] For the above reasons, this consideration would weigh against allowing the Applicant’s application out of time.

(d) The merits of the application

[26] The Applicant submits that he was dismissed in contravention of s.340 of the Act, which is as follows:

“Protection

(1)  A person must not take adverse action against another person:

(a)  because the other person:

(i)  has a workplace right; or

(ii)  has, or has not, exercised a workplace right; or

(iii)  proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)  to prevent the exercise of a workplace right by the other person.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[27] The Applicant outlined in his Form F8 that he was dismissed by the Respondent, by email, on the basis that he had requested regular working hours. The Applicant further submitted that he had simply “mis-stated” the term “verbal resignation” but intended to say “verbal argument”. The Applicant’s explanations for his misstatement, if it were true, were as follows:

“My mis-stated wording ‘verbal resignation’ just happened in the very tight time when with a pistol to my head I replied David’s email as I knew the 12pm close time of Saturday and just unwilling to drag on his family hour. Notwithstanding the error wording, it doesn’t interfere my clear idea I intended to convey by heading “This is not true…”.

[28] The Respondent submitted that the Applicant was not dismissed. He had simply resigned and had sought to change his position after it was accepted by the Respondent. So much is clear from the correspondence of 9 March, 2019, from the Respondent to the Applicant:

“That is correct , but that changed when you wanted more money .

Zhan I don’t think your happy here , let’s stick with your verbal resignation and move on . …” (Emphasis added).

[29] It is reasonable for the Respondent to rely on the information provided by Applicant as his resignation. It is not the role of the Respondent to decipher the Applicant’s true intention, after the fact, from what had been expressed.

[30] If it were the case that the Applicant had simply misstated the term “resignation” for “argument”, as he so claims, the Applicant’s evidence fails in that he submitted that he had simply asked what the company’s termination policy was. There is a clear inconsistency here.

[31] In these circumstances, it cannot be said that this application is of any significant merit. It seems to me that there will be considerable difficulty in the Applicant establishing the elements of contravention that he will be required to establish.

[32] This consideration weighs against granting an extension of time.

(e) Fairness as between the person and other persons in a like position

[33] The Applicant, in his outline of Submission, lists a number of employees of the Respondent whom he alleges had “left the company during [his] Four years [of] employment history,” and submitted that, in his view, not “all of them [were] treated fairly and terminated lawfully”.

[34] The Respondent submitted that that there is no prejudice to persons in a like position on the basis that there is nothing “exceptional” in nature, would not serve the public interest, nor any other person in a like position to that of the Applicant.

[35] In the Applicant’s reply submission, the Applicant does not formulate a reply to the Respondent, but instead provides instances where two employees of the Respondent were issued with a “Farewell Certificate” and a “separation certificate,” although I assume he is referring to a separation certificate for both employees. He then questions as to why he was not provided with one himself.

[36] Again, the Applicant fails to address this consideration adequately. There is no apparent basis for the Applicant’s assumptions as to the reasons for the other employees’ dismissals. Rather, the Applicant simply compares his dismissal to other alleged dismissals, though he concedes that he is not fully aware of the circumstances of each of the employees’ dismissal.

[37] For the reasons above, this consideration weighs against granting an extension of time in favour of the Applicant.

CONCLUSION

[38] It is clear to me that the absence of an acceptable reason for the delay, together with the considerations of the merits of the application and prejudice to the employer, substantially weighs against the conclusion of exceptional circumstances.

[39] I am therefore not persuaded that there are exceptional circumstances. The application is dismissed.

DEPUTY PRESIDENT

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 1   [2011] FWAFB 975.