Mrs Yuk Sim Kim Chan v A Hotel

[2011] FWA 7777

[2011] FWA 7777

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Yuk Sim Kim Chan
v
A Hotel
(U2011/9309)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 11 NOVEMBER 2011

Unfair dismissal. Extension of time. Exceptional circumstances.

[1] Mrs Chan has sought an extension of time for lodgement of her application pursuant to s394 of the Fair Work Act 2009 (the Act). Mrs Chan was dismissed on 10 June 2011. She lodged her application on 29 June 2011. The application was therefore lodged five days outside the prescribed time limit.

[2] Having heard the evidence I have found the facts to be as set out below:

● On Friday 10 June 2011 Mrs Chan was dismissed for serious misconduct.

● On Saturday 11 June 2011 Mrs Chan looked through the Positions Vacant advertised in the newspaper. Mrs Chan also went with Mr Chan to Robina Hospital to look for work.

● On Monday 13 June 2011 Mrs Chan went to Centrelink. Mrs Chan made an appointment for an interview on Wednesday 15 June 2011.

● On Wednesday 15 June 2011 Mrs Chan attended the Centrelink interview. Mrs Chan also telephoned Fair Work Australia (FWA). Mrs Chan was told by an operator on the helpline of FWA that an application form would take one day to reach her. She was not told of any time limit for lodgement when she made her telephone call. She was otherwise previously unaware of any time limit.

● Mr Chan received the application and attached information sheets a couple of days before she lodged it. This was the first time Mrs or Mr Chan was aware of the time limit. Mr Chan works seven days a week. Mr and Mrs Chan came to Brisbane on Wednesday 29 June 2011, which was as soon as they were able to, after receipt of the application, after filling it in and after having it translated from their Chinese script.

● In between making the telephone call to FWA and lodging her application Mrs Chan was distressed. She went to Centrelink on a number of occasions during this period and also independently continued to look for work.

[3] There was some discussion regarding Mrs Chan’s demeanour at a social gathering on the evening of Friday 10 June 2011. I consider this to be irrelevant.

[4] Mr Chan made submissions on behalf of his wife.

[5] As a non primary English speaking couple Mr Chan submitted that he and his wife did not have an equal opportunity to understand the legislation.

[6] Mr Chan also submitted that, had his wife been informed that there was a time limit when she spoke to FWA, he would have ensured that she lodged within time because they were both very anxious to contest the termination of her employment for serious misconduct.

[7] Mr Chan addressed the seriousness of the alleged misconduct. Mrs Chan is accused of stealing. Mr Chan submitted that this is a matter that will affect her reputation and possibly her livelihood. Mr Chan submitted that his wife had been very distressed by the nature of the allegation against her. Mr Chan submitted that the only way of alleviating Mrs Chan's distress was to have her application heard before FWA.

[8] The relevant legislative framework for the exercise of FWA’s discretion in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[9] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[10] Justice Branson said “...To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])”  5

(my emphasis)

[11] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 6I have also adopted that approach.

[12] I have considered the circumstances of this case in light of the criteria set out for consideration in s.394(3).

[13] The reason for Mrs Chan's delay in lodgement of her application was primarily the time it took for the application to reach her after it was posted by FWA.

[14] I accept Mrs Chan‘s evidence that she did not know of any relevant time limit when she made her telephone call to FWA. I accept Mrs Chan’s evidence that the operator at FWA did not inform her of any relevant time limit.

[15] I accept Mr Chan's evidence as to the date of arrival of the application and information sheets posted by FWA. I have given consideration to the differences between Mr Chan's evidence and that of his wife regarding the date the documents arrived. Mrs Chan's evidence was not clear. I believe Mrs Chan's recollection was clouded by her distress. I accept the evidence of Mr Chan as more reliable than that of Mrs Chan in this regard.

[16] I have considered the submission of the respondent that Mr and Mrs Chan could have followed up the application with FWA between Mrs Chan's telephone call and its actual arrival. However, I do not see any reason for a reasonable person in Mr and Mrs Chan's position to have chased the application, since neither had any pre-existing knowledge of the existence of any time limit and, as I have accepted, they were not informed about any time limit by the operator.

[17] It is not regular, routine or normal for operators on the FWA information line to fail to inform persons making enquiries as to the time limit. Nor is it regular, routine or normal for Australia Post to take more than a few days to deliver mail from Melbourne to the Gold Coast.

[18] I am satisfied that there was a reasonable explanation for Mrs Chan's delay given the circumstances of Mr and Mrs Chan and other events surrounding the application.

[19] The time at which Mrs Chan became aware of her dismissal is not a relevant consideration in all the circumstances of this application.

[20] Mrs Chan disputed the basis of her dismissal immediately upon it taking place. I have had regard to that matter.

[21] I have considered possible prejudice to the employer. There is no particular prejudice to the respondent except the ordinary obligation to defend an application as would arise in ordinary circumstances.

[22] I have had regard to the merits of the application. There is an arguable case. The allegations of misconduct involve allegations of a most serious nature. On balance those matters should be determined. It is preferable that Mrs Chan have an opportunity to defend these allegations because they may affect her reputation and the availability of continuing employment.

[23] There is no relevant matter of fairness arising between Mrs Chan and any other person in a similar position.

[24] Having had regard to those matters set out in s394 (3)(a) - (f) I am satisfied that there are exceptional circumstances justifying an extension of time for the lodgement of this application.

[25] I order that time for lodgement of this application be extended until the actual date of lodgement.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 6   [2010] FWA 1394 [PR994029] - 25 February 2010

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