Ms Wenru Yan v Aproperty Real Estate Pty Ltd
[2025] FWC 325
•5 FEBRUARY 2025
| [2025] FWC 325 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Wenru Yan
v
Aproperty Real Estate Pty Ltd
(U2024/15766)
| COMMISSIONER WILSON | MELBOURNE, 5 FEBRUARY 2025 |
Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – whether exceptional circumstances – exceptional circumstance not found – application dismissed.
This decision concerns an application by Ms Wenru Yan for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Yan’s employment with Aproperty Real Estate Pty Ltd (Aproperty) ended on either Wednesday 15 May 2024 as stated in her application form or Friday 10 May 2024 as stated elsewhere in the material before me. Ms Yan’s unfair dismissal application was filed in the Fair Work Commission on Monday 30 December 2024.
Pertinent to the subject of the date of effect of Ms Yan’s termination of employment, her unfair dismissal application form (the Form F2) states notice of termination was given on Monday 15 April 2024 with the date of effect being Wednesday 15 May 2024. The letter of resignation sent by Ms Yan to her employer was sent on 21 April 2024, with her stating within the letter that she announces her resignation “effective as of 10/05/2024”. With there being no contradiction of the date elsewhere in the material before me other than the Form F2, and with the Respondent also relying on 10 May 2024 as being the date of effect of Ms Yan’s termination of employment, I find that date to be the date of effect of her termination of employment.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on Friday 31 May 2024. The application was therefore filed 213 days outside the 21-day period. Ms Yan asks the Commission to grant a further period for the application to be made under s.394(3).
Aproperty opposes an extension of time for the commencement of Ms Yan unfair dismissal application as well as arguing that she has not been dismissed within the meaning of the FW Act, having instead resigned.
This decision considers only the matter of whether an extension of time should be granted to Ms Yan.
For the reasons set out below, I am satisfied on the material before me that there are not exceptional circumstances in Ms Yan’s case. It follows that I must dismiss her unfair dismissal application.
A determinative conference in respect of the application was held by me Thursday 30 January 2025, at which Ms Yan appeared on her own behalf and gave evidence relating to her application. Aproperty was represented by Ms Amy Cao, one of its managers.
BACKGROUND
Ms Yan worked as a sales director for Aproperty between 15 January 2022 and 10 May 2024. Her application says that her role involved managing sales operations, leading project marketing strategies and meeting key performance indicators.[1] Her remuneration involved payment according to a commission structure which varied according to the type of sale. Various parts of the material before the Commission indicates Ms Yan as having status as a shareholder of the business. However, whether that relationship is as a shareholder for the purposes of the Corporations Act is unclear to me.
In mid-April 2024, for reasons which are not entirely clear to me, Ms Yan resigned her employment with the letter of resignation including the following;
“Dear Amy Cao
I am writing to formally announce my resignation from my position as Operation Director and Partner at Aproperty, effective as of 10/05/2024. This decision was not made lightly, and after much consideration, I believe it is the right time for me to move on to new opportunities.
I am grateful for the invaluable experience and growth opportunities that I have gained during my time at Aproperty. Working with such a dedicated team and contributing to the success of the company has been a rewarding experience for me.
I will ensure a smooth transition of my responsibilities to my successor and will be available to assist in any way needed during this transition period.
I want to take this opportunity to express my gratitude to you and the entire team for your support, guidance, and collaboration throughout my tenure at Aproperty. I have learned a lot and am proud of the accomplishments we have achieved together.
Thank you once again for the opportunity to be a part of Aproperty. I wish the company continued success in all its future endeavors.
Sincerely,
Wenru Tiffany Yan”
Having resigned with effect from 10 May 2024, a dispute developed between the parties about future payments of commissions to which Ms Yan says she was [HM1] entitled. The nature of the commissions due to be paid to Ms Yan is that the entitlement to a payment does not crystallise until the sale of the property has settled, notwithstanding that Ms Yan may have been involved in procuring the sale during the period of her employment. The dispute continued at least for the remainder of 2024 and, on the basis of the material filed by the parties in these proceedings, it would appear the dispute remains active.
Emails exchanged between the parties on 9 May 2024 suggest they had amicably agreed a way forward for future payment of commission payments relating to past sales[HM2] ;
Thursday 9 May 2024 at 14:56 from Ms Cao;
“Hi Tiffany,
Please see the attached.
Please sign if you agree with the enclosed documents.
Any questions please let me know.”
Thursday 9 May 2024 at 16:52 from Ms Cao
“Hi Tiffany,
Please see the attached updated commission report.
We will pay your future commission and listing fee within 7 days of receiving commission payment from the developers.
We will deduct 20% from your total settlement commission as admin cost to help dealing with settlement.”
Thursday 9 May 2024 at 20:47 from Ms Yan
“Hi Amy
Please find the attached signed agreements.
Please nominate an account to transfer the Alux shares payment.
Best Regards,
Tiffany Yan”
In August 2024 Ms Cao wrote to Ms Yan advising there were difficulties with a particular settlement meaning that a commission payment of the nature Ms Yan had expected would not be paid. Instead, Ms Cao proposed a commission payment equivalent to 50% of that which would otherwise have been applicable. In later correspondence, Ms Cao advised that the Respondent would reduce all commissions due to Ms Yan by 50%.
By October 2024, Ms Yan was complaining to Aproperty that commission payments due and payable to her had not been paid. She threatened the commencement of legal proceedings in the Magistrates Court and advised Aproperty of a lawyer whom she had appointed to act on her behalf.[2]
When the dispute was not resolved Ms Yan lodged her unfair dismissal application in the Fair Work Commission on Monday 30 December 2024.
MATTERS REQUIRING DETERMINATION AND RELEVANT LEGISLATION
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Exceptional circumstances have been defined as circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3] Exceptional circumstances may 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 can be considered exceptional.[4]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the FW Act:
“394 Application for unfair dismissal remedy
(1) ….
(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.”
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT
Reason for the delay
The Act does not specify whether a particular reason for the delay might tell in favour, or not in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour, however, all the circumstances must be considered.[5]
With Ms Yan’s employment with Aproperty having ended on Friday 10 May 2024, the statutory filing period of 21 days ended at midnight on Friday 31 May 2024[HM3] . Instead, Ms Yan lodged her unfair dismissal application on Monday 30 December 2024, meaning that her application was filed 213 days outside the 21-day period.
The explanation Ms Yan puts to the Commission for the late lodgement of her application surrounds her claim for underpayment of the commissions she says are due and payable to her. Her concerns commenced in October 2024, five months after she left Aproperty’s employment. She does not say that she harboured concerns about her termination of employment at the time she sent the resignation letter on 21 April 2024 or at any time up to her final day of employment, 10 May 2024. She also does not say that her unfair dismissal concerns arose at any time during the statutory time period for the filing of her unfair dismissal application which ended on 31 May 2024, but instead that they arose only after she had left employment.
While I accept that Ms Yan’s concerns about underpayment may be real and that they directly led to the commencement of her unfair dismissal application, findings are not available to me either that she held concerns at the time of her termination of employment which are capable of leading to a finding of unfair dismissal or that the concerns arose after termination and now explain conduct prior to termination that could found a finding of unfair dismissal.
Ms Yan’s application form states in relation to the delay in making her application that “I have been trying to inform the business owner via different way such as registered post and emails, and I'm busy with current work.”[6] Her submissions for these proceedings, dealing with the matter of extension of time state somewhat differently that “As a real estate agent, each property unconditional or settled in different time, we will not be able to submit the dismissal within 21 days”. [7] Her oral submissions took this further arguing that her expectation was for the commission payments to be made within 7 days after unconditional settlement of a property. While this occurred in a couple of cases the Respondent later notified her that her commission payments would be reduced. Ms Yan responded by sending invoices to her former employer to remind them to pay, however they stopped payment.[8]
Ms Yan formed the view that hers was an unfair dismissal during October 2024 when a particular payment she says was due to her was declined altogether. The payment was invoiced on 14 October 2024 but was not paid and in her view was overdue from 21 October 2024.[9]
From these matters it may be discerned that by October Ms Yan had formed the view she was being underpaid and in December she lodged her unfair dismissal application. Why it took the two months from October, when she first formed the view she was being underpaid and needed to act, until the end of December to commence her application is unexplained. There was not extensive correspondence between the parties about Ms Yan’s grievance and she was not being strung-along by her former employer with promises of action that never eventuated.
It is apparent from these matters that the delay in filing is explained partly by Ms Yan being busy and focussed on matters other than lodging her application, and partly by an apprehension, incorrectly held, that an unfair dismissal proceeding could be used to resolve a payment dispute and that it need not be filed either until the obligation to make the payments crystallised or that it was clear that the dispute could not be resolved.
Neither is a satisfactory explanation. Preoccupation with other matters is not exceptional, nor indeed is the fact that the ordinary rhythms and demands of life cause one to be preoccupied. Similarly, a misunderstanding about one’s rights or the purpose or function of a legislated remedy is not exceptional.
In the circumstances, I find that consideration of this criterion leans against a finding of exceptional circumstances and the granting of an extension of time for the filing of Ms Yan’s unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect
Noting that the Respondent objects to whether there was a dismissal, it is nonetheless the case that Ms Yan was aware of the date of termination through her letter of resignation sent to Aproperty on 21 April 2024. As such, consideration of this criterion also leans against a finding of exceptional circumstances.
Action taken to dispute the dismissal
The actions taken by Ms Yan to dispute the payments made to her by Aproperty did not commence until months after her employment finished and there is no evidence that she put her grievances in the context of being a complaint that she had been dismissed and not resigned. I cannot from these exchanges form a view that Ms Yan was taking action to dispute her dismissal. Likewise, I do not find that the exchanges were such as to deflect Ms Yan from pursuing an unfair dismissal action for sufficiently long as to deny her the opportunity to make an in-time application.
Accordingly, consideration of this criterion is a neutral factor in my consideration of whether there are exceptional circumstances for a grant of an extension of time for the making of her unfair dismissal application.
Prejudice to the employer
Aproperty does not put forward any particular prejudice to it if an extension of time were to be granted, save for the fact that it objects to the characterisation of Ms Yan’s end of employment being a dismissal. Consideration of this criterion is also a neutral factor in my overall decision.
Merits of the application
The merits of the application to which I must have regard are formed upon a consideration of whether the limited evidence I have before me discloses a likely unfair dismissal[HM4] .
At this stage of proceedings, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. In matters such as this, the Commission will consider whether an Applicant has a sufficient case on the merits, accepting that, in the absence of evidence on the contested matters of merit, the Commission will usually not be in a position to make findings of fact on those matters.[10] Instead of a detailed consideration of the merits of a matter, the Commission will consider whether there is an arguable case on behalf of the Applicant; or alternatively, whether it appears an Applicant’s case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[11]
Ms Yan’s case in these proceedings suffers from unusually weak merits. She resigned her employment in April 2024 and at no time before the determinative conference held in relation to this application has she said why she considers the resignation to be a dismissal. Further, she did not cogently explain, even in summary, why the Commission would make a finding that hers was a forced resignation. While her focus in these proceedings is upon rectification of the payments she believes are due to her, the Commission is unable to address that grievance in any orders it may make if it found she had been unfairly dismissed.
Consideration of the merits of Ms Yan’s case therefore weighs against a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal Applicants, whose applications are either currently before the Commission, or have been decided in the past.[12] It would be unfair to other persons who have not been allowed a further period to make an unfair dismissal application in the absence of exceptional circumstances.[13]
There is no evidence before the Commission of any person in such a similar position[HM5] .
CONCLUSION
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Yan, I am not satisfied that there are exceptional circumstances that would warrant an extension of time for the making of this application for an unfair dismissal remedy.
As a result of this finding, Ms Yan’s unfair dismissal application must be dismissed and an order to that effect is issued at the same time as this decision.[14]
COMMISSIONER
Appearances:
Ms. W. Yan, for the Applicant
Ms. A. Cao, for the Respondent
Hearing details:
30 January.
2025.
[1] Form F2, item 2.1; Digital Hearing Book (DHB), p.5.
[2] DHB, p.71.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975,[13].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[6] Form F2, item 1.4; DHB, p.4.
[7] Applicant’s outline of argument: Extension of time, item 4; DHB, p.35.
[8] Transcript, PN 79 – 80.
[9] Transcript, PN 85 – 91.
[10] Kyvelos v Champion Socks Pty Limited (2000) Print T2421, [14].
[11] Haining v Deputy President Drake (1998) 87 FCR 248, [250].
[12] Wilson v Woolworths [2010] FWA 2480, [24]‒[29].
[13] Jalil v BMD Constructions Pty Ltd[2014] FWC 9357, [10].
[14] PR783918.
Printed by authority of the Commonwealth Government Printer
<PR784029>
[HM1]“alleges she was entitled…”?
[HM2]Consider:
“The following exchange of emails, made close to the date of effect of Ms Yan’s termination of employment, seem to suggest an amicable way forward for future payment of commission relating to past sales:"
[HM3]Friday 31 May 2024
[HM4]I must have regard to the merits of the application, based on a consideration of whether the limited evidence before me discloses a likely unfair dismissal.
[HM5]I’m not clear what this means? Does it mean there is no evidence of any person with a similar case to Ms Yan’s? and that person’s EOT was granted?
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