Qinchuan Liu v Easy Link Conveyancing

[2021] FWC 5288

[2021] FWC 5288

FAIR WORK COMMISSION

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

(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.”

[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 consider these matters in the context of the Application.

BACKGROUND

[7] Mr Liu was employed with Easy Link Conveyancing from 21 June 2019 until his dismissal on 12 July 2021. Mr Liu is a licenced conveyancer.

[8] Mr Liu received a warning letter on 18 June 2021 which provided that if there was another occurrence of the matters raised in the letter that it would lead to dismissal. 3 The warning letter details that Mr Liu had demonstrated inappropriate behaviours in his interactions with his colleagues, he had made errors with his work and did not follow instruction and direction.

[9] Mr Nguyen, the Respondent’s Director, states that Mr Liu was dismissed for serious misconduct as he requested a real estate agent to transfer $43,813.98 into the account of another client and because he commenced operation of his own company in direct competition with the Respondent without notifying the Respondent of the conflict of interest.

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

Reason for the delay

[10] The Act does not specify what reason for delay might tell 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 of the circumstances must be considered. 4

[11] The Applicant in explanation for the delay in lodging the application provides that:

“In the first place, I did not realize that I was fired unfairly because I was at sick leave. I had some health issues previously and felt quite depressed that wastes some days before I came back to deal with the possible unfair dismissal. Only until today do I realize that I have right to challenge the unfair dismissal.” 5

[12] Mr Liu submits that he had been covered by medical certificates from 29 June 2021 and that he was not able to “stand up for myself even after the employment was finished” due to the behaviour he experienced from the Respondent during his employment. 6

[13] Before the Commission there are four medical certificates which cover the periods of 29-30 June 2021 inclusive; 5-7 July 2021 inclusive; 8-9 July 2021 inclusive and 12-13 July 2021 inclusive. Each of the medical certificates refers to Mr Liu having a “medical condition” and do not provide further information about his circumstances. The dates referred to are the days Monday to Friday between 29 June and 13 July 2021, with the exception of 1 and 2 July.

[14] There is no further material before the Commission relating to the Applicant’s illness and the certificates provided cover only one day (being 13 July 2021) of the 21-day period Mr Liu had in which to file his unfair dismissal application.

[15] The reason for the delay is disputed by the Respondent as Mr Liu was able to communicate with Mr Nguyen in the days following his dismissal concerning the payment of entitlements:

“Also, as per the email trails dated 15.07.21, this is 3 days after receiving the termination letter, he clearly mentioned that he believed he could lodge an unfair dismissal with Fair Work but he chose not to do so. Instead he negotiated the company to pay him the sick leave for 12.07 & 13.07 which we have done. We had also fulfilled our obligations of paying him all the accumulated annual leave, superannuation to the final date and also the sick leave as per his demand. However, so far he has not even returned the company key as per agreement. He was fully aware of his responsibilities and rights but he chose not do so.” 7

[16] The email chain before the Commission is five emails exchanged between Mr Liu and Mr Nguyen between 12-15 July 2021.

[17] I do not consider this explanation individually or together, to be an acceptable or reasonable explanation for the delay. The reason given for the delay as far it is related to illness is not supported by any medical evidence. While I accept that the Applicant may have been ill during some or all of the period of the delay, without there being any medical evidence that details the impact the illness had on the Applicant’s capacity to file the application, I do not accept the explanation as preventing Mr Liu from lodging the application on time or at a time earlier than the date on which the application was lodged. Claims that a filing delay was caused by illness must be accompanied with medical evidence that the illness adversely affected a person’s cognitive functioning and that this caused, contributed, or at least explained the delay. 8

[18] To the extent that Mr Liu relies upon being unaware that he could file an application when he asserts “Only until today do I realize that I have right to challenge the unfair dismissal.” 9, I am not persuaded by this reason. The email chain between Mr Liu and Mr Nguyen demonstrates that Mr Liu was aware of being able to file in the Commission as early as 15 July 2021. Fundamentally he chose not to exercise his rights until the date he filed, 12 August 2021.

[19] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[20] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is therefore a neutral consideration.

Action taken to dispute the dismissal

[21] There is no material before the Commission demonstrating the Applicant took any steps to dispute his dismissal, except for the filing of the application. In fact, Mr Liu’s 15 July 2021 email states “have the choice to lodge a case to the fair work but I choose not to as a gentlemen gesture. At least, you need pay me the sick leave for Monday and Tuesday”. The personal leave payment was made, and Mr Liu’s statement may be taken as him stating that he has no dispute with the Respondent if it paid the personal leave. This criteria therefore weighs against a finding of exceptional circumstances.

Prejudice to the employer

[22] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[23] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[24] 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 that such 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

[25] The contest between the parties about the reason for dismissal and its fairness will only be resolved through the hearing of full evidence. The Applicant argues that it was unfair to dismiss him during a period of personal leave and that his performance had been outstanding. The Respondent’s termination letter includes that Mr Liu had been given a warning about his performance in June which he did not heed and that an error Mr Liu made with a large transfer was misconduct, as were the steps he took to change his professional registration and start up his own business. Whether those things are actually misconduct or otherwise and a valid reason for Mr Liu’s dismissal may only be determined on a full hearing. Accordingly, this criterion is a neutral consideration in my decision.

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

[26] 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 In relation to the question of fairness as between applications arising out of the same employer, the Commission is not aware of there being any other person presently before the Commission dismissed by the same employer for similar underlying issues.14

CONCLUSION

[27] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

COMMISSIONER

Appearances:

Mr Q. Liu for himself

Mr H. Nguyen for the Respondent

Hearing details:

Melbourne (via video conference);
1 September;
2021.

Printed by authority of the Commonwealth Government Printer

<PR733211>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Form F3 Employer’s Response Form, 16 August 2021, item 2.2.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

 5   Form F2 Unfair Dismissal Application, 12 August 2021, item 1.5.

 6   Applicant Outline of Submissions Extension of Time, 24 August 2021, item 4.

 7   Form F3 Employer’s Response Form, 16 August 2021, item 2.2.

 8   Bokhee Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

 9   Form F2 Unfair Dismissal Application, 12 August 2021, item 1.5.

 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   Whittle v Redi Milk Australia Pty Ltd[2016] FWC 3773, [38].