Mrs Yuqi Dong v Goldenlight Plaster Pty Ltd

[2020] FWC 4800

[2020] FWC 4800

FAIR WORK COMMISSION

DECISION

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

Mrs Yuqi Dong
v
Goldenlight Plaster Pty Ltd
(U2020/8893)

DEPUTY PRESIDENT CROSS SYDNEY, 8 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 29 June 2020, Mrs Yuqi Dong (“the Applicant”) lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (“the Act”). The Applicant claimed she was employed, by Goldenlight Pty Ltd (“the Respondent”). The Applicant commenced her employment with the Respondent on 26 April 2013. The Applicant claimed that she was dismissed without notice, with that dismissal taking effect on 15 November 2018.

[2] Unfair dismissal applications 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. Taking as the point of calculation the date when the dismissal took effect, an application for a remedy should have been lodged by 6 December 2018. The application was therefore lodged outside of the time prescribed and was lodged 571 days after the last day on which such an application could have been made.

[3] On 17 July 2020, directions were issued to program the manner in which the Applicant’s application to be allowed an additional period within which to lodge her application (“the Application”) would be determined (“the Directions”).

[4] The Directions also provided that the Application would thereafter be determined on the materials filed by the parties, unless an application was made and granted for the hearing of the matter in person. No such application was made.

[5] The parties complied with the Directions. The Applicant relied upon a submission originally contained in an email sent to the Chambers of Vice President Catanzariti, and that email was resent to my Chambers on 30 July 2020 (“the Applicant’s Submission”). The Applicant also filed statements from two friends, Shing Cheong Wong and Jing Yi Ren, together with Emergency Department Discharge Records for 16 November 2018 and 7 April 2019, and a Histopathology Report from Concord Repatriation General Hospital dated 6 December 2018.

[6] The Respondent relied solely upon a submission dated 14 August 2020 (“the Respondent’s Submission”), that was prepared by its Solicitor, Chen Shan Lawyers.

[7] In reply on 27 August 2020, the Applicant filed a submission titled “Appeal” that annexed various documents that the Applicant conceded were “…nothing to do with this case”. Further documents were subsequently received on 28 August 2020, which were screenshots of correspondence and internet searches relating to claims for unpaid wages and superannuation.

Relevant Facts

[8] The relevant facts of the matter as disclosed by the materials filed are:

(a) The Director of the Respondent, Mr Shusen Liu, is the Applicant’s ex-partner.

(b) After an apparent breakdown in their relationship, Mr Liu summarily terminated the Applicant’s employment on 15 November 2018. The Applicant’s access to the bank accounts of the Respondent was terminated on 16 November 2018, and she received no further wages from the Respondent.

(c) On 16 November 2018, an incident occurred in the Respondent’s office that the Applicant described as an attempt at suicide, and the Emergency Department discharge form of 16 November 2018, described as “while in the office sitting, she leaned back and accidentally hit her occiput quite hard on the wall 1400.”

(d) The immediate financial distress suffered by the Applicant caused her to transfer her daughter from a private school to a public school, and engage a solicitor to help her to resolve issues surrounding the property of her relationship with Mr Liu. The Applicant claims that she asked her Solicitor about “any compensation at work”, but was advised that none was available.

(e) The Applicant stated that at that time she didn’t have any more financial resources and she was subject to mortgage pressures. She was stressed, looking for employment, and her mental state was poor. The Applicant also suffered kidney illness confirmed in the Histopathology Report from Concord Repatriation General Hospital dated 6 December 2018. These pressures were confirmed by the Applicant’s friends, Shing Cheong Wong and Jing Yi Ren, in their statements.

(f) The Applicant noted that she telephoned “fair work and fair work office just told me about how many weeks wages he need to pay me, they didn't tell me dismissal compensation.” The date of that contact was not specified but seems to have occurred in early 2019.

(g) On 7 April 2019, the Applicant was taken by ambulance to hospital. The Emergency Department Discharge Record notes that the Applicant reported suicidal ideation to paramedics. The discharge record noted the following:

“…prompted by argument with ex- partner. Argument around financial issues - has investment property shared with ex- partner. Currently attempting to buy new property, but unable to due to mortgage on investment property. Has asked ex- partner to take sole ownership of investment property multiple times over last 6 months. Has agreed but has failed to sign on multiple occasions, most recently yesterday. This prompted mental distress today. After speaking with MH CNC, currently feels much better. Does not wish to harm herself, as has young daughter who she is determined to care for. Has plan to deal with any further issues with ex- partner, involving discussion with tax office. No previous mental health history or substance use. History of nephritis under infection and hyperthyroidism. No new physical symptoms to suggest medical cause. Assessed as low risk, and schedule lifted in ED. Discharged home in care of friend and pastor, who are happy with her mental state. Review with GP and return to ED if any concerns.”

(h) After the medical event of 7 April 2019, the Applicant went to Bankstown legal aid and “asked again about unpaid wages and unfair dismiss and separation of family property”. The Applicant did not state what advice was received at that time.

(i) On 6 June 2019, Mr Liu obtained a Domestic Violence Order against the Applicant. The Applicant claimed that the Domestic Violence Order precluded her, or “even fair work” contacting Mr Liu, however the Domestic Violence Order provided simply that contact must be through a lawyer. The Applicant’s evidence was that after the Domestic Violence Order expired after twelve months on 6 June 2020, “… i continue seek legal advice, because my mental state is better than before. and one lawyer told me i have dismissal compensation but expired”. The Applicant further stated that she contacted “fair work again and fair work office”, and was told they were two different departments, “one is responsible for unpaid wages, another is responsible for unfair dismissal compensation, so i contact with you as soon as possible.”

Consideration

[9] Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:

“(2)  The application must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (3).”

[10] As the Application was lodged outside of the 21 day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:

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

[11] It is clear from the structure of s.394(3) of the Act 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.

[12] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, 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.394(3) of the Act, there are exceptional circumstances.

(a) Reason for the delay

(b)

[13] When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this, Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWC 479 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[14] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.” (Emphasis added)

[15] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation. 

[16] The delay in this matter of 571 days is significant. While the Applicant clearly suffered severe financial and physical hardship arising from her sudden termination, that hardship seems to have occurred predominantly in late 2018 and early 2019. Certainly by the time of the issuance of the Domestic Violence Order on 6 June 2019, the Applicant was well enough to pursue the agitation of her claims against the Respondent and Mr Liu. It would seem that the vigour of her agitation resulted in the Domestic Violence Order.

[17] I do not accept that the existence of the Domestic Violence Order precluded the Applicant agitating her rights. The Domestic Violence Order simply required that any further contact must be through a lawyer.

[18] I find that there was no acceptable explanation for the Applicant’s delay in filing the Form F2. The Applicant did not promptly pursue her claim, taking a significant period after the expiry of the 21 day limitation period to lodge her claim. Accordingly, this factor weighs in the Respondent’s favour.

(b)  Whether the person first became aware of the dismissal after it had taken effect

[19] This is not a relevant factor in this matter.

(c) Action taken by the person to dispute the dismissal

[20] The Applicant did not appear to specifically challenge her dismissal in any way. Nonetheless, the Respondent made no submission regarding this consideration. Accordingly, I consider that this is a neutral factor.

(d) Prejudice to the employer

[21] The Respondent referred to the decision of the High Court in Brisbane South Regional Health Authority v Taylor  1, and submitted that such a long period of delay gives rise to “a general presumption of prejudice”. I accept that submission.

[22] More specifically, the Respondent notes, and I accept, that unnecessary difficulties have been created in locating prospective witnesses to support the Respondent’s case, and such witnesses’ recollections will be reduced by the significant effluxion of time. Accordingly, this factor weighs in the Respondent’s favour.

(e) Merits of application

[23] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that an unfair dismissal as defined by the Act occurred.

[24] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues.”

[25] As these matters are contested, I unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(f) Fairness between the person and other persons in a similar position

[26] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[27] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any significant weight were acceptable reason for delay and prejudice to the employer. Both factors weighed in the Respondent’s favour.

[28] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[29] The Applicant should note that this decision relates only to her unfair dismissal application. Issues relating to underpayment of wages and superannuation are subject to different time limitations relating to commencement of such claims.

DEPUTY PRESIDENT

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 1 [1996] HCA 25.