Qianghua Yuan v Dentcare Dental Lab Pty Ltd
[2023] FWC 2854
•31 OCTOBER 2023
| [2023] FWC 2854 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Qianghua Yuan
v
Dentcare Dental Lab Pty Ltd
(U2023/2571)
| COMMISSIONER SCHNEIDER | PERTH, 31 OCTOBER 2023 |
Application for an unfair dismissal remedy
Mr Quianghua Yuan (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Dentcare Dental Lab Pty Ltd (the Respondent).
The Respondent has objected to the application on the ground that the application is out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
Relevant law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“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.
…(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)…”
As the Full Bench has stated, in relation to a general protection’s application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.
Section 394(3) of the Act lists the considerations the Commission must take into account:
“394 Application for unfair dismissal remedy
….
(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 issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. 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 reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5] An applicant does not need to provide a reason for the entire period of the delay.
Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[6]
The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.[7]
This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application.
Consideration
The Applicant’s employment was terminated by notice, dated 5 December 2022, via email, with the effective date of 24 December 2022. The effective date of dismissal being 24 December 2022 is not disputed by the parties.
The application was filed in the Commission on 27 March 2023.
As the dismissal took effect on 24 December 2022, the final day of the 21-day period was therefore 16 January 2023 and ended at midnight on that day. As I found above, the application was made on 27 March 2023, approximately 70 days after the lodgement period.
As the application was not made within the 21 days of the date on which the dismissal took effect, I must now consider whether it was made within such a further period as the Commission allows.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 16 January 2023.
The delay is the period commencing immediately after that time until 27 March 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[9]
An Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[10]
The Applicant, primarily, relies upon the following reason as contributing to the delay:
· The Applicant filed a General Protections claim with the Commission on 21 December 2022.[11]
· That after attending an initial conference with the Commission in the General Protections matter, the Applicant withdrew his claim, on 24 March 2023, and filed this Unfair Dismissal claim, on 27 March 2023.
The Applicant submits that he mistakenly lodged the wrong from in the Commission and was told by the Member hearing the General Protections matter of this error. The Applicant is not a native English speaker and highlights that he has not had legal representation throughout the proceedings.
On the materials provided to the Commission, it appears the Applicant originally lodged an unfair dismissal application in the West Australian Industrial Relations Commission, before being notified of his error and promptly filing in the federal General Protections jurisdiction.
In relation to the reason for the delay, the Respondent submits that, regardless of the reasons behind the Applicant initially filing an F8 General Protections application, the Act of discontinuing his previous application and filing this application out of time is not an exceptional circumstance for the purposes of the Act.
The Respondent submits that this is not a case of the Applicant filing the wrong application type in error. Rather, the Applicant proceeded with his initial application to conciliation before deciding to withdraw that application and commence a new application.
The Respondent also submits that there was nothing preventing the Applicant from continuing with his initial application. There were no jurisdictional issues or similar which would have prevented the Applicant from pursuing a General Protections claim as opposed to an Unfair Dismissal claim. Rather, as the Respondent submits, the Applicant appears to have decided that this application provides him with a better chance of success. The Respondent cites Lane v Kangaroo Island Dive & Adventures Pty Ltd in support of this submission.[12] In that matter, the applicant had brought a claim under section 773 of the Act, alleging unlawful termination, when they were in fact not an individual who would fall within the jurisdiction of such application. The applicant in that matter was provided an extension to lodge a General Protections matter in light of the error.
Further, the Respondent highlights that the circumstances of this dispute would be better suited to the General Protections jurisdiction, noting there are significant jurisdictional hurdles that have arisen as a result of this application being an Unfair Dismissal.
The Respondent disputes the Applicant’s submissions regarding him being informed of an error in the conference, submitting that the conference was purely a conciliation.
The Respondent also notes that the General Protections matter was listed for conference and adjourned on three occasions before finally proceeding to a Member Assisted Conciliation. The Respondent submits that two of these adjournments were granted at the Applicant’s request, including one for the purpose of seeking legal advice.
I am inclined to agree with the Respondent in regard to the intention behind the change in application type.
I am not satisfied that the circumstances of this matter are reflective of one in which an applicant has lodged in the incorrect jurisdiction and promptly seeks to remedy their error upon becoming aware of it. It appears that the Applicant in this matter had already been notified of an incorrect application prior to lodging his General Protections matter, which would lead one to believe more care would have been exercised when lodging.
Further, the Respondent is correct in noting the nature of the applications in question highlighting that the Applicant was not unable to proceed with a General Protections matter and, notably, such matter would not have given rise to the Genuine Redundancy objection present in the current one.
Accordingly, I find that the reasons put forth would understandably contribute to a delay, given the Applicant’s initial pursuit of a General Protections application and, notably, his English language abilities.
However, I am not satisfied that this criterion alone gives substantial weight to a finding of exceptional circumstances, noting the issues just discussed, and will be weighed accordingly with my findings below.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicant, in his F2 Application Form filed with the Commission, and in his evidence before the Commission, confirmed that he was notified on 5 December 2022 his employment was ending.
The Applicant was required to work his notice period and his employment ceased on 24 December 2022.
The Applicant was clearly aware of his dismissal prior to it taking effect and had the full benefit of the 21-day time period to make his application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant submits that he took the following actions to dispute the dismissal:
· As outlined and discussed prior in this decision, the Applicant filed General Protections claim with the Commission, on 21 December 2022.
· The Applicant attempted to dispute his dismissal with his employer directly. The Applicant submits that he had discussions with his line manager, Mr Leejo George (Mr George), in relation to his dismissal.
The Respondent acknowledges that the Applicant had previously filed a General Protections application with the Commission.
The Applicant provided a copy of an email sent by his manager, Mr George, to the Respondent, on 11 December 2022, sating:
“Upon my discussion with Mr Jason technician, his last working day will be 24 th December 2022.
Please ask Hr – Mrs Shalmy to prepare final settlement pay.
All outstanding leaves required to be paid plus a non conflict settlement of 4 months full wages to be paid as a final pay.
You may discuss same with CMD and share me the draft of final payslip for me to verify. On approval of CMD please arrange adequate fund by 24th Dec.”
The Applicant was naturally upset and concerned about his employment ending with the Respondent.
The Applicant was seeking an additional “goodwill” redundancy package which was outside his entitlements under the NES and applicable award.
From the evidence provided to the Commission, the Applicant sought to confirm if such a payment would be made to him by the Respondent through his manager.
The Applicant also raised concerns that he felt the Respondent was not genuine in the reasoning for his employment ending, as the Applicant was of the belief that the Respondent would be re-opening the business in Melbourne.
From the testimony provided by Mr John Kuriakose (Mr Kuriakose), Director of the Respondent, the Respondent has not re-opened operations in Melbourne.
I accept that the Applicant took steps to question aspects of his dismissal with his direct manager Mr George.
However, in the submissions and evidence from the Applicant, it was evident that the main point raised by the Applicant was regarding the further “goodwill” payment in addition to his entitlements.
There is no evidence that suggests the Respondent’s senior management had agreed to make such a payment, rather this was being requested by the Applicant and his manager.
The Applicant was not seeking to raise a dispute in relation to his actual dismissal, instead the Applicant was seeking an additional payment outside of his statutory entitlements.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted.
The Respondent submits that it had already participated in the previous General Protections application conciliation proceedings.
The Respondent submits that, due to the Applicant filing a second application out of time, the Respondent has suffered the inconvenience and expense of dealing with a second application.
The Applicant did not make any submissions in relation to this point.
Whilst I accept the argument of the Respondent, I do not believe that the Respondent would suffer a material prejudice should they be required to dedicate additional time and financial resources to defending a second application should an extension of time be granted to the Applicant.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
The Applicant makes various allegations in relation to the conduct of the Respondent in this matter, including the below:
· The Respondent had engaged overseas employees who were required to live and work at the Respondent’s business address.
· The Respondent had failed to pay superannuation and other entitlements to the Applicant. The Respondent had unpaid the Applicant’s wages.
· The Respondent was dishonest in making the Applicant redundant as the Respondent was seeking to move the operation to Melbourne.
The Respondent submits that the Commission should have regard to the following matters in its consideration of the merits of the application:
· There is a weak case on the merits of the application.
· The Respondent’s business was not financially viable and, as a result, the Respondent ceased operations in Australia and the Applicant was made redundant. The Respondent submits that, if the application is to proceed, then it is destined to fail for this very reason.
· The Respondent submits that the Applicant’s allegations of any form of unpaid wages or entitlements are not matters which are generally considered in an unfair dismissal application and are denied by the Respondent.
The Applicant made several allegations in relation to the conduct of the Respondent; however, the Applicant did not provide any significant evidence in support of these allegations.
From the evidence provided by the Applicant, it is evident that the Respondent has ceased operations in Australia. Accordingly, there is strong evidence to indicate the legitimacy of the redundancy and the difficult jurisdictional position the Commission would find itself in if the application were to proceed.
In all the circumstances, I agree with the Respondent on its assessment of the merits of the application as it related to these jurisdictional failings.
It is clear, on the evidence before the Commission, that the Respondent is in the process of winding up. The status of the Respondent supports the strength of the Genuine Redundancy objection and leaves the Commission in the position where the application is unlikely to proceed further or result in any fruitful conclusion considering the financial position of the Respondent.
Fairness as between the Applicant and other persons in a similar position
The Respondent raised the issue of fairness as between the Applicant and other persons in a similar position.
The Respondent submits that the 21-day time limit specified in the Act is applicable to all employees, and it would be unfair to allow a departure from the time limits that have been specified by the Act.
The prima facie position is that time limits must be complied with. To grant the extension would serve to encourage a view in other persons in a similar position that time limits may be disregarded or have a measure of flexibility not supported by the legislation.
The Respondent has a raised a valid consideration. Generally, the Commission has accepted that an applicant who filed the incorrect application and, upon becoming aware of their error, promptly remedies it by filing the correct application type, can give rise to exceptional circumstances. However, on the materials before the Commission, this does not appear to be the case here. Rather, it appears, the Applicant initially pursued one type of application of a type that he was jurisdictionally permitted to pursue, and then opted to change application type to one he, erroneously, believed to be preferable.
In light of the above, it is reasonable to conclude that it would be unfair to others, who changed their mind in relation to their preferred application type and had an extension of time denied by the Commission as there was no error in the initial filing.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reason for the delay, being the Applicant initially filing a section 365 application with the Commission then discontinuing that application to file this application out of time;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the actions taken by the Applicant to dispute the dismissal, being mainly focused on his seeking an additional “goodwill” payment from the Respondent, rather than seeking to challenge his dismissal via an internal review process or similar.
(d) the absence of any prejudice to the employer;
(e) the merits of the application being weak; and
(f) fairness as between the Applicant and other persons in a similar position, having regard to situations outlined above at para 53.
Upon assessment of all the criteria listed above, and on the materials currently before the Commission, I am not satisfied that there are exceptional circumstances in this matter.
The Applicant’s main reasons for the delay in filing is that he initially filed a General Protections application. However, following the conciliation in that matter, the Applicant discontinued his application and filed this current application for Unfair Dismissal with the Commission.
I am conscious of the fact that the Applicant’s English language skills could, plausibly, contribute to errors in filing. However, I am not satisfied the language barrier indeed contributed to any such issues.
The Applicant filed a General Protections application, it was open to him to do so and continue to pursue such an application as he saw fit. I agree with the Respondent’s submission that the Applicant changed his application type due to preference and not as a result of any error in filing or the selection of an inappropriate jurisdiction.
It is clear that the Applicant had the full benefit of the 21-day lodgment period and promptly took action to lodge his previous General Protections application. I accept that the Applicant was not happy with the circumstances of his termination and that he had discussions with his manager regarding the potential for additional severance payments. I also accept that his manager escalated these discussions with senior management. However, I do not see this enquiry regarding additional payment to amount to any sort of challenge to termination that would support a finding of exceptional circumstances.
Again, I note that the Commission is apprehensive to draw any solid conclusions on the merits of the matter without a hearing of such issues. However, on the materials before the Commission and the evidence of the parties’, it is clear that this application is unlikely to proceed past the next jurisdictional hurdle pertaining to Genuine Redundancy. Further, the Respondent is no longer a viable employer and the likelihood of any financial or other beneficial outcome if the matter proceeds, if the Respondent even continues to participate in light of its trading status, is poor.
Having regard to all of the matters at section 394(3) of the Act, particularly with regard to the issues traversed above, I am not satisfied that there are exceptional circumstances.
In the alternative, if I have erred above and the Applicant’s circumstances should indeed lead to a finding of exceptional circumstances, I would not exercise my discretion to extend the period for lodgment. On assessment of all the criteria and circumstances of this matter, I would not be inclined to conclude that the exceptional circumstances warrant the extension of such a time period. In support of this conclusion, I note the considerable jurisdictional issues and trading status of the Respondent. Such issues, in all likelihood, foreshadow the demise of the application if it were to pursue further and the unnecessary expenditure of the parties’ and Commission resources.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[13]
COMMISSIONER
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; [2015] FWCFB 1877.
[3] [2011] FWAFB 975, at [13].
[4] [2011] FWAFB 975, at [13].
[5] [2018] FWCFB 901, [39].
[6] [2018] FWCFB 901, [40].
[7] [2018] FWCFB 901, [17].
[8] [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[9] [2018] FWCFB 901, [39].
[10] [2018] FWCFB 901, [40].
[11] (C2022/8542).
[12] [2020] FWC 1620.
[13] [PR767767].
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