Qiang Rosa Tu v Optimal System Australia Pty Ltd T/A Optimal System Australia

[2014] FWC 6786

[2014] FWC 6786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Qiang Rosa Tu
v
Optimal System Australia Pty Ltd T/A Optimal System Australia
(U2014/11275)

COMMISSIONER WILLIAMS PERTH, 2 OCTOBER 2014

Termination of employment - extension of time.

[1] The applicant in this matter Mrs Qiang Rosa Tu (Mrs Tu or the applicant) has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The respondent is Optimal Systems Australia Pty Ltd T/A Optimal Systems Australia (the respondent).

[2] Mrs Tu was dismissed on 27 June 2014. The application was made on 29 July 2014.

[3] The application has been lodged more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[4] Section 394 (3) of the Act allows the Fair Work Commission (the Commission) to grant a further period for an application such as this to be made only if the Commission is satisfied that there are exceptional circumstances. The factors to be taken into account are prescribed in s. 394 of the Act below.

“394 Application for unfair dismissal remedy

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

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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).

(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.”

[5] Submissions have been provided by Mrs Tu regarding allowing a further period for this application to be made.

Are there exceptional circumstances?

The reason for the delay

[6] In her application Mrs Tu explains the reasons the application was not made within 21 days of her being dismissed were that although she “Googled” unfair dismissal and noticed the deadline for lodging an application was 21 days from the dismissal she was nervous and felt helpless and struggled with how she could protect herself properly and how she could fight the respondent.

[7] Mrs Tu says she tried to call the Employment Law Centre of Western Australia (the ELCWA) but could not reach anyone to help her. The telephone records Mrs Tu has provided demonstrate that she made one call to the ELCWA on 10 July 2014 but did not call again until 28 July 2014, which was well after the 21 days had passed and was the day before she made her application.

[8] English is Mrs Tu’s second language and she was afraid she could not express herself properly when involved in a dispute.

[9] She says that because of the economic pressures she initially tried to find a new job as soon as possible and was concerned about getting her reference from the respondent and feared that if she lodged an application the respondent would say something negative in her reference.

[10] The records provided by Mrs Tu of her text messages regarding a reference indicate she pursued this first on 8 July 2014, then on 14 July 2014, 16 July 2014 and 17 July 2014.

[11] She indicates that she received a reference dated 22 July 2014.

[12] Some time after the 21 day period had elapsed she was advised by someone that she should still make the application even if it was after the 21 days.

[13] Mrs Tu explains that she visited the Commission on 28 July 2014 and completed the forms and lodged them the next day.

[14] She saw her GP on 31 July 2014 and was diagnosed as suffering from depression and anxiety.

[15] In summary Mrs Tu says the reasons for the delay were that it was hard for her to make a decision to lodged the application for unfair dismissal, she had a lack of experience with such disputes and little knowledge of employment law and had a lack of local social relationships and was suffering from depression and fear of fighting with the respondent.

[16] What is clear from the explanation for the delay is that from an early stage after her dismissal Mrs Tu was aware that she could make an application and was required to do so within 21 days from the dismissal.

[17] The fact that Mrs Tu was nervous and felt helpless, and was unsure how she could for any number of reasons fight the respondent, is a feeling that unfortunately is something that would be quite common amongst employees who have been dismissed unexpectedly.

[18] The fact that Mrs Tu immigrated to Australia in 2008 and that English is not her first language is also something that would not be uncommon for any number of employees. I do note that it seems Mrs Tu was employed as a bookkeeper and her application demonstrates her command of English is quite adequate. As Mrs Tu recognised herself the Commission does provide interpreters and in addition all of the Commission’s information is provided in multiple languages on its website.

[19] Mrs Tu’s decision to focus on getting a new job as soon as possible is quite natural for a person who has unemployed and nothing out of the ordinary.

[20] Mrs Tu explanation that she was depressed and is suffering from anxiety, as diagnosed by her doctor after she made this application, does not of itself amount to an acceptable reason for the delay in this instance. Mrs Tu has not provided medical evidence that would support the Commission finding that she was so unwell as to be incapable of making this application prior to the date she did. In any event on her own explanations she was quite well enough to make enquiries and investigations both online and by telephone as to her rights. She was actively pursuing the respondent for a reference and was actively trying to find a new job. This clearly demonstrates that her health was not such that it rendered her unable to make this application earlier than she did.

[21] The fact that the applicant chose to wait until she received her reference from the respondent before making an application was a choice she made quite deliberately. I note in any event this reference was received approximately one week before her application was made.

[22] Considering the explanations for the delay in making this application I am not satisfied that there is any acceptable reason for the delay in this instance.

Any action taken by the person to dispute the dismissal

[23] The applicant has not otherwise sought to dispute her dismissal.

Prejudice to the employer (including prejudice caused by the delay)

[24] There is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

The merits of the application

[25] There is a limited information regarding the merits of Mrs Tu’s application and the respondent has yet to file a response to the application so consequently the question of merit is a neutral factor for the determination of the extension of time question.

Fairness as between the person and other persons in a similar position

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

Conclusion

[27] The onus is on the applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided and the submissions. In this case there is no acceptable reason for the delay in making the application and there are no other factors weighing in favour of finding there where exceptional circumstances.

[28] In the absence of exceptional circumstances I cannot exercise the discretion available to allow a further period for this application to be made. The application has been made out of time and so is not properly before the Commission and must be dismissed.

[29] There will be no further proceedings regarding this application and Mrs Tu’s file will be close.

[30] An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Final written submissions:

Applicant, 7 August 2014

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