Nancy (Xiaokun) Wang v Woden Early Childhood Centre Incorporated

[2014] FWC 4409

[2014] FWC 4409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nancy (Xiaokun) Wang
v
Woden Early Childhood Centre Incorporated
(U2014/3959)

COMMISSIONER DEEGAN CANBERRA, 25 JULY 2014

Application for relief from unfair dismissal - Extension of time.

[1] On 23 January 2014 Ms Nancy (Xiaokun) Wang (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) for relief in respect of the alleged unfair termination of her employment by the Woden Early Childhood Centre Incorporated (the employer).

[2] According to her application the applicant was notified of her dismissal on 23 December 2013 and received a letter of termination on 8 January 2013. The answer to question 1.3 on the application form ‘When did your dismissal take effect?’ was ‘20.12.2013 Payment stopped on 18 December 2013.’

[3] By the Employer’s Response (Form F3) the employer claimed that the applicant was notified of her dismissal in writing on 20 December 2013 and, at the request of the applicant provided an Employment Separation Certificate to the applicant on 23 December 2013. According to the copy of the ESC attached to the Form F3 the applicant’s employment was terminated with effect from 20 December 2013.

[4] As the date of effect of the termination was in dispute and the provisions of s.394(2) of the Act may not have been met the matter was listed for hearing.

[5] The substantive hearing of the matter took place on 12 June 2014. Difficulties in arranging an interpreter and the late filing by the applicant’s solicitor of an interim application with accompanying documentation resulted in unavoidable delay and an earlier adjournment of the proceedings.

[6] For reasons of efficiency, and given that the applicant had requested the assistance of an interpreter and that the employer is a non-profit day care centre, both parties were granted permission to be represented by legal practitioners.

[7] On 11 June 2014 the applicant filed a statement of evidence 1 and a statement by Mr Peter Sutherland, a Legal Aid solicitor2. These documents were accepted into evidence despite the earlier adjournment having been granted as a consequence of the filing of a large amount of documentation by the applicant’s then solicitor on the day of the first hearing and the fact that Mr Sutherland was not available for cross-examination.

[8] According to the applicant’s statement:

• She was employed from 19 April 2012 until 27 July 2013 as a casual employee of the employer and from 27 July 2013 until her termination as a permanent part time employee;



• She made a workers’ compensation claim in late September 2013 and this claim was accepted by the insurer;



• She had difficulties working with another employee of the Centre;



• She received a letter from her employer on 22 October 2013 containing allegations about her conduct in the workplace and directing her not to attend work until a ‘fitness for duty’ assessment could be carried out;



• On 4 November 2013 she attended a mediation with the staff member with whom she had difficulty working;



• On 26 November 2013 she attended an appointment with a psychiatrist for the purposes of a medical assessment;



• On 16 December 2013 she received a letter from her employer advising that consideration was being given to terminating her employment as a consequence of the report provided by the doctor who conducted the medical assessment and asking that she advise if there were any matters she wished to have them take into account when making the decision;



• She advised her employer she was unable to comment having not seen the doctor’s report;



• She made a number of attempts to gain access to the report through her own doctor but was unsuccessful;



• She telephoned her employer on 19 December to advise that she was unable to provide further information as she had still not seen the doctor’s report. She claimed that Ms Stefek, of her employer, advised her that she could not provide the doctor’s report directly to the applicant but only through her treating doctor and that the outcome of the doctor’s assessment was set out in the letter of 16 December;



• The applicant stated that Ms Stefek had advised her that she would send the Employment Separation Certificate (ESC) and the letter of termination to her the following day;



• On 20 December 2013 the applicant received the ESC and her payslip via email from Ms Stefek.;



• On 23 December the applicant received an email with the ESC and the letter of termination from Ms Stefek and immediately contacted Legal Aid;



• According to the applicant Legal Aid advised her to get the letter of termination and the doctor’s report before making an appointment with them;



• The applicant received the ‘formal’ letter of termination in the mail on 9 January 2014 and made an appointment with Legal Aid for 13 January;



• She met with a legal aid paralegal on 13 January and was told the date of effect of the termination was the day (9 January 2014) she received the letter of termination in the mail and made an appointment for the applicant to see a solicitor on 20 January 2014;



• The applicant filed her application for unfair dismissal on 23 January 2013.

[9] At the hearing the applicant gave her evidence with the assistance of an interpreter. She stated that she received the letter of termination on 9 January 2014. It was also her evidence that Ms Stefek had sent her the letter of termination by email on 23 December 2013. She confirmed that she attended Legal Aid on 13 January 2013 and was advised that she had 21 days from the date she received the termination letter in the mail in which to file her application for unfair dismissal. The applicant had mistakenly annotated the letter with the words ‘received 8 January’. At the time she attended Legal Aid she had already collected and filled out a form to make an application for unfair dismissal.

[10] Under cross-examination the applicant confirmed the details of her employment history with the employer and agreed that she had a home computer with internet access. She also agreed that in late 2001 she had commenced an MBA with UTS but stated that she did not continue with the course as she had found employment. She agreed that the course had been taught in English. It was her evidence that she had worked (either casually or part-time) for another child care centre primarily for English speaking children.

[11] At this point of the cross-examination the applicant’s solicitor made it clear that the applicant was not claiming to have misunderstood the unfair dismissal process as a consequence of some inability to understand English 3.

[12] The applicant conceded that during September and October 2013 she became quite unwell suffering migraines. She claimed that this was a consequence of an accident at work when a co-worker sprayed some chemical cleaner in her face. The applicant agreed that in the early hours of the morning on 23 October 2013 she had sent Ms Stefek an email which caused Ms Stefek to have concerns for her welfare. The applicant stated that later that morning she had been woken by a visit from the police, who had been sent by her employer. She also stated that the police had called an ambulance and then the ‘crisis management team’. She advised her employer at a later meeting that she had been grateful for the intervention as a doctor called had prescribed sleeping pills for her.

[13] The applicant agreed that after this incident she was stood down from work and asked to attend a medical assessment with a psychiatrist, Dr Zsandanyi, to determine whether she could do her job. The applicant also agreed that she was aware that if the doctor’s assessment was that she could not perform the requirements of her job, she would be dismissed. After being unable to make an earlier appointment the applicant attended an appointment on 26 November 2013 and was informed of the doctor’s assessment on 16 December. She noted that she was not given the doctor’s report on 16 December 2013 but a letter summarising the report.

[14] In response to further questioning Ms Wang agreed that the doctor’s report had been sent to her general practitioner and that she could have gone to discuss it with him. She claimed, however, that she had contacted the medical centre and had been advised the report had not been received.

[15] It was the applicant’s evidence that she had spoken by phone to Ms Stefek on 19 December 2013 and asked about the medical report. She claimed that she had told Ms Stefek that she had no further information to provide as she did not have the report. She denied that she had told her that she did not wish to respond to the letter she received on 16 December but agreed that she had sent an email to Ms Stefek later that night to confirm that she had no further information. She said she had sent this email as Ms Stefek had asked her to put in writing that she had no further information to provide. She also stated that Ms Stefek had told her that she would send her a letter of termination, a pay slip and an ESC the next day.

[16] When asked if she knew that by advising Ms Stefek in writing that she had no further evidence her employment would be terminated, the applicant responded ‘ I knew that even on 18 December. That’s why I sent the email to Reesha. I said I don’t have any more information to provide because I haven’t received Dr Zsandanyi’s medical report.” 4 The applicant agreed that she sent Ms Stefek the ESC document because she knew her employment would be terminated. She said “Reesha told me that over the telephone.” It was also the applicant’s evidence that on 23 December 2013, the date she received her letter of termination she was aware her employment had been terminated5. She further agreed that when she received that letter on 23 December she understood her employment had been terminated but wanted to know why6 .

[17] It was also the applicant’s evidence that, at the suggestion of Centrelink, on 6 January 2014 she emailed Ms Stefek asking her to alter the ESC to backdate the date her termination took effect to 17th of December the last date she was paid.

[18] The applicant conceded that she had discussed Dr Zsandanyi’s report with her own doctor on 8 January 2014 who, based on the report, gave her a medical certificate for the period 10 December 2013 until 10 February 2014. She agreed that her own doctor agreed with Dr Zsandanyi’s assessment.

[19] The applicant agreed that she met with a paralegal from Legal Aid on 13 January 2014 and a solicitor from Legal Aid on 20 January 2014. She also agreed that she was given free advice by Legal Aid and did not pay any money to them. Further, she confirmed that at the time she went to Legal Aid she had completed the unfair dismissal application. She got some information from the Fair Work Commission website and also from the counter at the Fair Work Commission.

[20] Finally, the applicant denied a suggestion that, on 19 December 2013, she had told Ms Stefek that she did not want to discuss Dr Zsadanyi’s report with her own doctor and had no further information to add.

[21] When re-examined, the applicant corrected her earlier evidence and noted that the police visit to her home had occurred on 23 October and that she had been stood down from her employment on 22 October.

[22] A statement by Mr Peter Sutherland, a Legal Aid Solicitor, was tendered in support of the applicant’s case. The employer did not object to the statement being tendered despite Mr Sutherland being unavailable for cross examination. Mr Sutherland’s evidence confirmed that the applicant had an appointment with him on 20 January 2014. She had shown him the letter undated letter of termination which she had hand-annotated ‘Rvd 8 Jan’ and instructed him that she had first received her termination letter on 8 January. On the basis of that advice, Mr Sutherland had advised the applicant that the date of effect of her termination was 8 January 2013.

[23] Evidence for the employer was given by Ms Reesha Stefek, director of the employer for 19 years. A statement of evidence was filed by Ms Stefek 7.

[24] According to Ms Stefek’s statement::

• There were ongoing difficulties between the applicant and another employee;



• Ms Stefek was concerned about the applicant’s ‘erratic’ behaviour and on 21 October 2013 was made aware of allegations by other staff that the applicant was secretly recording their conversations;



• Ms Stefek met with the applicant on 21 October to discuss some documentation that applicant had completed that Ms Stefek was concerned about;



• She again met with the applicant on 22 October to discuss concerns raised by the applicant that she was being treated unfairly at work;



• She received an email from the applicant in the early hours of 23 October which concerned her and caused her to phone the police;



• As she was concerned for the applicant’s mental well being and her ability to perform her duties she stood the applicant down on full pay pending a medical assessment;



• On 25 October 2013 Ms Stefek requested that the applicant attend an appointment with a psychiatrist on 30 October;



• The applicant did not consider herself well enough to attend the appointment with the psychiatrist;



• On 4 November an unsuccessful mediation was held between the applicant and the other staff member with whom she had difficulties;



• On 13 November the applicant was directed to attend for a medical assessment on 26 November with the psychiatrist place;



• Ms Stefek hand-delivered a copy of the psychiatrist’s report to the applicant’s treating doctor and advised her that she would make additional time available to her to respond to the report so that she could discuss it with her doctor.

[25] It was the evidence of Ms Stefek that on 19 December the applicant telephoned her and, in response to Ms Stefek telling her that it was important that she respond to the report given that it could lead to the termination of her employment, the applicant advised MS Stefek that she did not want to see her doctor and that she had nothing more to say. Ms Stefek asked the applicant to put this response in writing. Later that day Ms Stefek received an email from the applicant in the following terms:

‘Hello Reesha,

Regarding the letter you sent to me on December 2013, I don’t have any information to provide.’

[26] On 19 December the applicant forwarded a blank ESC to Ms Stefek for completion.

[27] Under cross-examination Ms Stefek agreed that on 22 October she had provided the applicant with a letter directing her to not attend the child care centre and that same night had received from the applicant an email that caused her concern. She was also aware of working difficulties between the applicant and another employee at the Centre.

[28] When it was put to Ms Stefek that in the telephone conversation with the applicant on 19 December the applicant had advised her that she had no further information to provide as she had not seen Dr Zsadanyi’s report, Ms Stefek denied this. She claimed that the applicant had told her on 19 December that she had nothing further to add despite being offered additional time to talk to her doctor about the report. She agreed that it was difficult for the applicant to respond if she had not seen the report but noted that it was summarised in the letter sent to the applicant and that the applicant could have responded to those matters. She reiterated that the applicant refused an offer of further time to respond.

[29] It was also Ms Stefek’s evidence that she asked a staff member to post the termination letter to the applicant on 20 December 2013 but sent the email on 23 December. She had been unable to sign the letter sent on 23 December as the computer did not have a scanning facility. She said that the applicant was aware the letter was coming and knew it was from Ms Stefek. While Ms Stefek agreed that the applicant had wanted to see the report from Dr Zsadanyi and that she had hand delivered the report to the applicant’s doctor, she denied that the applicant had ever mentioned discussing the report with her own psychologist. She stated that she had been advised by Dr Zsadanyi’s staff not to provide the report directly to the applicant but through someone with a medical background. According to Ms Stefek after receiving the report form Dr Zsadanyi the Centre had taken legal advice before terminating the applicant.

Submissions

[30] Comprehensive written submissions were file on the applicant’s behalf.

[31] It was submitted for the applicant that the date of effect of the termination was the date she received the letter of termination through the mail. This argument was based on the requirements of s.117 of the FW Act and s.28A of the Acts Interpretation Act 1901 which deals with when a document is ‘served’. The contention was that the letter of termination sent by email to the applicant on 23 December 2013 did not comply with the requirement under s117 of the FW Act that written notice be provided of a termination date not before the date the notice is given.

[32] It was put for the applicant that the termination letter emailed on 23 December 2013 stated that the termination took effect on 20 December 2013 and therefore did not comply with s.117. It was also submitted that the emailed termination letter was not signed and should not be relied upon as the notice of termination.

[33] Further, the applicant had relied on advice from Legal Aid about the date of effect of the termination. It was submitted that had she not been misled by the advice given by Legal Aid she would have lodged her application, which she had already completed, on 13 January 2013 (the day she said she spoke to the Legal Aid paralegal). It was put that this was the last day for filing if the date of termination was 23 December 2013.

[34] Essentially it was argued for the applicant that:

• the application was not out of time as the date of effect of the termination should be found to be 9 January the date the applicant received the signed letter of termination, and



• were the date of effect found to be either 20 or 23 December then there are exceptional circumstances justifying further time for filing being permitted.

[35] It was submitted for the employer that there are no exceptional circumstances in this case. It was argued that the date of effect of the dismissal was 23 December 2013 the day the applicant, on her own admission, received the letter of termination.

[36] It was put that the intervention of Christmas and New Year holidays was not of itself an exceptional circumstance 8.

[37] Further it was argued that the applicant could not claim ‘representative error’ as it was unclear whether Legal Aid had representative status. In addition it was contended that the Legal Aid solicitor was acting on information provided by the applicant when giving advice about the date of effect of the termination. It was noted that legal advice based on faulty or incomplete instructions does not provide an acceptable explanation for delay 9. In addition it was noted that the applicant took no action to dispute the termination with the employer prior to lodging the application.

[38] So far as the merits of the application are concerned, it was submitted that Dr Zsadanyi had assessed the applicant as being unable to fulfil the inherent requirements of her job and that this diagnosis was supported by the applicant’s own doctor.

Consideration

[39] The legislation relevantly provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

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

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

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

[40] The initial matter to be determined is the date on which the dismissal took effect

[41] The applicant conceded during her evidence that she was aware her employment had been terminated by 20 December 2013. While I accept that she did not receive written notice of the termination until 23 December 2013, there is Full Bench authority that the provisions of s.117 of the FW Act are not relevant for the purposes of determining the date of effect of the termination 10. I find that the date of effect of the termination was 20 December 2013. In those circumstances, in order to comply with s.394(2) of the FW Act, the application was required to have been lodged by Friday 10 January 2014.

[42] As the application was lodged outside the statutory time limit it is for the applicant to satisfy the Commission that exceptional circumstances exist that warrant the Commission allowing further time for lodgement of an application for an unfair dismissal remedy.

[43] The application was lodged on 23 January 2014. This is 34 days after the termination took effect. The applicant stated that she had access to the internet and that she had consulted the web page of the FW Commission. She also sought advice from the Legal Aid hotline shortly after being notified of her dismissal.

[44] I do not accept the statement of the Legal Aid solicitor as proof that the applicant’s late lodgement was due to representative error. The statement goes only to information given by that solicitor on 20 January 2014 and does not excuse the applicant’s failure to lodge prior to 10 January 2014. In any event it is not representative error if advice given by a representative is incorrect as a consequence of incorrect information supplied by an applicant 11.

I would have reached the same conclusion had the date the termination of employment took effect been 23 December 2013 and in light of the advice given to the applicant by the paralegal on 13 January 2014. I would not have accepted the applicant’s failure to lodge by 13 January to have been excused by the paralegal’s advice, even were I to accept that the paralegal was the applicant’s ‘representative’.

[45] In those circumstances I do not need to determine if the Legal Aid solicitor involved was, in fact, the applicant’s ‘representative’ such that a claim of representative error can be made out.

[46] I do not find that any exceptional circumstance exists as a consequence of the intervention of the Christmas and New Year holidays.

[47] Despite having English as a second language and the applicant requesting the assistance of an interpreter for the hearing, it was conceded on the applicant’s behalf that her ability to lodge the application was not, in any way, hampered by any language difficulties.

[48] The employer concedes that there is little or no prejudice caused by the delay. This is not sufficient, of itself, to allow a further period within which to lodge.

[49] On the limited evidence as to the circumstances of the termination, I am unable to conclude that the application is completely without merit and this therefore is a neutral consideration and I make no finding as to merit.

[50] The matter of fairness as between the applicant and other persons in a similar position is of little relevance in the circumstances of this case.

[51] Taking into account all of the criteria outlined at s.394(3) of the Act, I am not satisfied that exceptional circumstances existed such that I should allow a further period for lodgement of the application.

[52] The application is dismissed.

Appearances:

Ms J Campbell, of the Women’s Legal Centre, for the applicant

Mr N Read, of Counsel, for the respondent

Hearing details:

2014.

Canberra:

June 6.

 1   Exhibit W1

 2   Exhibit W4

 3   Transcript PN250

 4   Transcript PN419

 5   Transcript PN 438-439

 6   Transcript PN 487- 496

 7   Exhibit R1

 8   Smith v KGM[2010] FWA 5515

 9   Tom Plaksa v Rail Corporation , NSW [2007] AIRC 333

 10   Corner v SkyCity Adelaide Pty Ltd[2011] FWAFB 955

 11   Tom Plaksa v Rail Corporation NSW [2007] AIRC 333

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