Rebecca Zhuang v Growing Patch Early Learning Centre Pty Ltd

[2022] FWC 1486

[2022] FWC 1486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Zhuang
v

Growing Patch Early Learning Centre Pty Ltd

(U2022/3624)

DEPUTY PRESIDENT EASTON SYDNEY, 10 JUNE 2022

Application for an unfair dismissal remedy – unfair dismissal application filed out of time – section 394 of the Fair Work Act 2009 (Cth) – no exceptional circumstances – application dismissed.

1. The Applicant was employed by Growing Patch Early Learning Centre Pty Ltd from August 2021 until her dismissal on 2 March 2022. On 26 March 2022 the Applicant made an application of an unfair dismissal remedy.

1. Section 394(1) of the Fair Work Act 2009 (Cth) (FW Act) requires that an unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows if there are exceptional circumstances (per s.394(3)).

1. The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome.[1] Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances, viz:

“(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.”

1. Directions were made on 20 May 2022 for the parties to file material in preparation for a hearing on 9 June 2022. The Applicant’s evidence and submissions were due on 27 May 2022. No material was received.

1. In answer to several inquiries by the Commission, on 3 June 2022 the Applicant explained in an email:

   “Im sorry to say ive been experiencing a sudden health scare and was not well enough to manage collating documents (I am able to produce evidence from the medical professionals who attended to me if necessary).  I understand ive passed the deadline set and Ms Barbanera is rather upset and unwilling to extend the matter. If there is no choice I will proceed with the hearing as is.”

1. The Applicant was granted a further opportunity to provide evidence, so long as she also provided evidence from a medical professional referred to in her email.

1. No material was provided.

1. The Applicant did not attend the hearing and did not respond to any of the Commission’s attempts to make contact with her.

1. For the following reasons I find that there are no exceptional circumstances that would confer upon me a discretion to allow an extension of time.

Reason for the delay

1. In her original application the Applicant provided the following explanation for her delay:

   “1. From 1 to 7 March 2022 I was moving house and was not able to prepare my unfair dismiss application during this time, largely because I could not find the documents I needed until the  move was finished.

   2. From 17 to 23 March 2022 I was travelling in Australia for family reasons and was not able to prepare my unfair dismissal application during this time.
   3. I have not been able to locate my employment contract, and searching for it has delayed me in making this application.”

1. None of the above reasons provide a ‘credible or reasonable’ explanation for the delay, which point against a finding that there were exceptional circumstances.

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

1. 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 a neutral consideration.

Action taken to dispute the dismissal

1. In taking into account “any action taken by the person to dispute the dismissal”.[2] The Applicant does not appear to have taken any steps to dispute her dismissal prior to making her unfair dismissal remedy application.

1. This is not a factor that supports the existence of any exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.

Prejudice to the employer

1. Given that the delay is very short, it is unsurprising that there is a lack of prejudice to the employer. In these circumstances the absence of prejudice to the respondent does not weigh in favour of a finding of exceptional circumstances.[3]

Merits of the application

1. I am not convinced the Applicant has an arguable case. She was dismissed for repeated lateness and appears to have been properly on notice of the Respondent’s concerns about her attendance. I consider the merits to be a neutral consideration.

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

1. I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

1. Having regard to the matters I am required to take into account under s.394(3), I am not satisfied that there are exceptional circumstances. 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.[4]

DEPUTY PRESIDENT

Appearances:

Non-appearance by the Applicant
Ms E Barbanera for the Respondent

Hearing details:

2022.
Sydney (By Video using Microsoft Teams)
June 9.

[1] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd[2021] FWCFB 2606 at [24].

[2] Fair Work Act 2009 (Cth), s.394(3)(c).

[3] Miller v DPV Health Ltd [2019] FWCFB 6890 at [21] citing Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38].

[4] PR742568.

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