DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Qinchuan Liu
v
Easy Link Conveyancing
(U2021/7128)

COMMISSIONER WILSON

MELBOURNE, 2 SEPTEMBER 2021

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

[1] This decision concerns an application by Mr Qinchuan Liu (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant’s employment with Easy Link Conveyancing (the Respondent) was terminated with effect from 12 July 2021. The unfair dismissal application was filed in the Fair Work Commission (the Commission) on 12 August 2021.

[2] 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 Monday, 2 August 2021. The application was therefore filed 10 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[3] 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. 1 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.2

[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.

LEGISLATION

[5] 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

(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.”

[6] 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 5288
Decision Date: 2 SEPTEMBER 2021

CaseChat Overview and Summary

The case of Qinchuan Liu v Easy Link Conveyancing involved an application for unfair dismissal filed out of time. Liu, the applicant, was an employee of Easy Link Conveyancing. The dispute arose when Liu was dismissed and subsequently sought to lodge a claim for unfair dismissal. The application was filed beyond the statutory time limit, which led to the respondent, Easy Link Conveyancing, arguing that the application should be dismissed for being out of time. Liu argued that there were exceptional circumstances justifying the delay. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the exceptional circumstances exception applied to allow Liu's late application for unfair dismissal. The Commission needed to determine if the circumstances were genuinely exceptional and whether Liu could provide a satisfactory explanation for the delay. The Commission also considered whether the respondent would suffer an injustice if the late application was accepted.

The Commission found that Liu had not provided a satisfactory explanation for the delay in lodging the application. Liu had been aware of the need to act promptly but failed to do so without a justifiable reason. The Commission held that the circumstances did not constitute an exceptional case warranting an extension of time. Consequently, the application was dismissed. The Commission emphasised that the onus was on Liu to demonstrate exceptional circumstances, and in this case, Liu had not met that burden. The late filing, coupled with the lack of a valid reason, precluded the Commission from exercising its discretion to accept the application.

As a result of the Commission's decision, Liu's application for unfair dismissal was dismissed. The Commission did not grant leave for Liu to file a late application, thereby upholding the statutory time limits for such claims. The decision underscored the importance of adhering to procedural requirements and the limited circumstances under which a late application may be accepted.

Orders