Ren Hua Gong v Gladesville Joinery Pty Ltd T/A Gladesville Joinery - [2010] FWA 3961

[2010] FWA 3961

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment

Ren Hua Gong
v
Gladesville Joinery Pty Ltd T/A Gladesville Joinery
(U2010/7901)

COMMISSIONER ROBERTS

SYDNEY, 2 JUNE 2010

Termination of employment - extension of time.

[1] This decision concerns an application lodged by Mr Gong on 12 April 2010 for relief pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act) in respect of the alleged harsh, unjust or unreasonable termination of his employment by Gladesville Joinery Pty Ltd trading as Gladesville Joinery (the Company). Mr Gong also seeks relief pursuant to s.661 (failure to give notice of termination) of the Act.

[2] In his application, Mr Gong states that the termination of employment took effect on 24 April 2009. Accordingly, his application was filed some 332 days outside the 21 day time limit prescribed by the Act and therefore requires me to consider whether to grant Mr Gong an extension of time for filing. An extension of time was opposed by the Company which also objected to conciliation before determination of the application to extend time.

[3] Directions were issued on 22 April 2010 for the filing of submissions, witness statements and any supporting documents. Mr Gong provided material in accordance with the Directions but the Company did not. However, the Company provided material as an attachment to its form R28 (Notice of Employer’s Appearance) filed on 20 April 2010.

[4] I will now proceed to determine the extension of time issue on the papers, as permitted by s. 647 of the Act.

Legislative Framework

[5] Subsections 643(14) and (15) of the Act provide:

“(14) An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect, or within such period as the Commission allows on an application made during or after those 21 days.(15) An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee’s employment, or within such period as the Commission allows on an application made during or after those 21 days.”

[6] The following Note appears under subsection 643(15):

“Note: In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.”

[7] Those principles were set out by Marshall J in Brodie-Hanns v MTV Publishing Ltd (‘Brodie-Hanns’) 1

"(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”

[8] In Cruz and Australia Post Corporation 2(Cruz), a Full Bench of this Commission said of Brodie-Hanns:

“Principle 4 is not a separate criterion: it is in the nature of a commentary on principle 3. Principle 1 should not be seen as a criterion to be assessed independently of the matters in principles 2, 3 5 and 6. Rather, principle 1 is a summary of how the discretion to extend time should be approached and specifies, as it were, an overarching test, namely that prima facie time should not be extended unless there is, having regard to all the circumstances of the case, ‘an acceptable explanation which makes it equitable to [extend time]’. Principles 2, 3, 5 and 6 identify factors that bear upon an assessment of whether a given explanation for delay is sufficiently adequate, in all the circumstances, makes it ‘equitable’ to extend time. In this context the word ‘equitable’ connotes fairness and is concerned with fairness as between the applicant and respondent - in the language of the WR Act, ‘a fair go all round’.” 3

Background

[9] Mr Gong was employed by the Company as a Joiner from on or about 16 March 2006 until the alleged termination of his employment. The Company maintains that it did not terminate Mr Gong’s employment as he abandoned it. Documents supplied by the Company show that Mr Gong applied to take some six weeks annual leave from late April 2009. That leave request was refused on the basis that Mr Gong had only 8.5 days of accrued annual leave as he had taken 19 working days leave from 24 December 2008 to 26 January 2009. The Company supplied me with a letter dated 22 April 2009 addressed to Mr Gong which said:

“I understand that you intend to go overseas on holiday from 27th April to 5th June, 2009 (30 days).

I have explained to you that you will be only entitled to 8.15 days pay as you have previously taken 19 days leave at Christmas time, and you told me that this is correct.

Today I have explained to you that you will be fully paid-up by Gladesville Joinery Pty Limited when you leave your employment, and that Gladesville Joinery Pty Ltd will be making other arrangements to replace you so as to retain the level of production committed for in the factory.

You have told me that you understand that on your return, you may re-apply for employment at Gladesville Joinery Pty Limited, but that will be the decision of the management.

If you are entitled to any Long Service Leave in addition to your recorded service with Gladesville Joinery Pty Ltd, you will need to apply to the Long Service Payments Corporation, contact no. 13 14 41. Web

Please find attached a smiliar letter to this, which was given to you to sign and return to us but which you indicated that you did not wish to sign.”

[10] The Company filed a statutory declaration sworn by Mr B Galanos, Director/Manager. That sworn statement went to the history of Mr Gong’s employment and said, inter alia, that Mr Gong understood that the taking of six weeks leave would end the employment relationship, although Mr Gong could reapply for a position on his return subject to the availability of work.

[11] Mr Gong maintains that his employment was terminated without notice.

Explanation of the delay

[12] In addition to material filed with his application (form R27) Mr Gong filed three sets of submissions and attachments. That material goes extensively to various disputes with the Company but is largely silent on the extension of time issue. At best, Mr Gong appears to maintain that he has been in telephone contact with the Company about the possibility of returning to work on several occasions since April 2009 and has been waiting for a positive reply. Documents submitted by Mr Gong show that he complained to the Fair Work Ombudsman (FWO) in November 2009 and lodged a ‘complaint form’ on 20 December 2009. The Company states that the FWO made contact with it in February 2010. A statement from Mr Gong dated 23 March 2010, witnessed by a Fair Work Inspector, shows that he attended the FWO office on three occasions during March 2010. Mr Gong said: “During this process I was informed by them [FWO] that this case is best if I lodged with FWA.”

Action taken by the Applicant

[13] Mr Gong maintains that he disputed the termination of his employment during regular contact with the Company since returning from overseas in early June 2009. I am satisfied on the material before me that Mr Gong took action to dispute the alleged termination of his employment and/or sought reemployment and so find.

Prejudice to the Respondent

[14] It is clear to me that the time that has elapsed since the alleged termination of Mr Gong’s employment is a factor which would cause significant prejudice to the Company if time was extended. I therefore find that the granting of an extension of time would result in substantial prejudice to the Company.

Merits of the substantive application

[15] The facts of the substantive application are strongly contested. On the material before me, I am of the view that it is more likely than not that the Company would successfully defend an application by Mr Gong for relief for harsh, unjust and unreasonable termination of employment. My view is strengthened by a letter dated 25 May 2010 in which FWO wrote to the Company concerning the finalisation of its investigation arising from Mr Gong’s complaint. In that letter, FWO says:

“Based on Mr. Gong’s witness statement, Record of Interview with Mr. Galanos, unsigned letter to Gladesville Joinery Pty Ltd from Mr. Gong dated 14 April 2009 and letter from Mr. Galanos to Mr. Gong dated 22 April 2009, the entity did not terminate Mr. Gong’s employment. Mr. Gong abandoned his own employment by taking leave that had not been approved.

As it appears that Gladesville Joinery Pty Ltd is meeting its obligations under Commonwealth workplace laws and the Award, the Fair Work Ombudsman will be taking no further action in relation to this matter.”

Fairness between the Applicant and other persons in a like position

[16] In the case before me, there does not appear to be anything which makes this consideration relevant and it has therefore been neutral in my decision making.

Conclusion

[17] As prescribed in Brodie-Hanns, I “must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.”

[18] The onus is on Mr Gong to convince me that I should extend time. I am not satisfied, on balance, that he has met that onus.

[19] There is nothing in the material supplied by Mr Gong which could lead me to the conclusion that a delay of some 332 days in filing should be waived. Mr Gong did not even make his approach to FWO until some eight months after the alleged termination of his employment. There is just nothing before me which could positively convince me that I should extend time. The delay in filing the application is so significant that I find that this is not a case where I should grant an extension of time.

[20] The application to extend time is refused and therefore the substantive application must also be dismissed. Having made this finding, it is not necessary for me to examine the question of whether or not there was a termination of employment at the initiative of the Company.

COMMISSIONER

1 (1995) 67 IR 298 at p299.

2 [2008] AIRCFB 452, 30 May 2008 ( per Lawler VP, Richards SDP, Redmond C)

3 Ibid at paragraph 23.

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