Sheng Lu v Brightstar Resources Limited (Formerly Stone Resources Australia Limited)

[2021] FWC 1014

[2021] FWC 1014

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sheng Lu
v
Brightstar Resources Limited (Formerly Stone Resources Australia Limited)
(U2020/15195)

COMMISSIONER WILLIAMS PERTH, 24 FEBRUARY 2021

Termination of employment - jurisdiction - extension of time.

[1] Mr Sheng Lu (Mr Lu or the Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act). The respondent is Brightstar Resources Limited (Formerly Stone Resources Australia Limited) (the Respondent).

[2] Mr Lu’s application says he was notified of his dismissal and it took effect on 22 October 2020 and he has provided a letter dated 22 October 2020 titled ‘Notice of termination of your employment’ which is consistent with this.

[3] Mr Lu made this application on 24 November 2020.

[4] Section 394 (2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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).

(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.”

[5] The application has been made more than 21 days after the dismissal took effect and so cannot proceed unless a further period is allowed for the application to be made.

[6] Consequently, I wrote to the Applicant explaining the requirements of section 394 of the Act and inviting him to provide any relevant evidence and submissions to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

[7] The Applicant has provided a written response to the Fair Work Commission’s direction. This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there exceptional circumstances?

The reason for the delay

[8] In his application Mr Lu states he did not have any knowledge of the 21 day application period until he consulted a lawyer.

[9] In his detailed submission Mr Lu explains he took a number of steps immediately to contest the dismissal. On 22 October 2022 he rang the Respondent’s Chairman and one of the Directors. The next day he emailed the Company Joint Secretary. He also contacted the Chairman again.

[10] Then he wrote a letter to the Chairman on 8 November 2020.

[11] Mr Lu says after many discussions the Respondent finally offered him $10,000 if he signed a Deed of Settlement.

[12] On 19 November 2020 he went to see a lawyer for advice. The lawyer told him then about the 21-day time limit for unfair dismissal remedy applications.

[13] Mr Lu says he was not aware of this until then. Mr Lu says if had known about the Act’s 21-day requirement he would have lodged his application within 21 days of receiving his notice of termination letter.

[14] Turning to consider the reason for delay in making the application, the Fair Work Commission has on many occasions held that not being aware of the requirement to make an application within 21 days of the dismissal taking effect is not an exceptional circumstance. A Full Bench of the Commission explained this in Cheyne Leanne Nulty v Blue Star Group Pty Ltd [[2011] FWAFB 975] as follows,

“[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[15] Consequently, in this case the fact Mr Lu did not know he was required to make the application within 21 days is not an acceptable reason for the delay and is not an exceptional circumstance.

[16] Further choosing to attempt to negotiate a financial settlement rather than seeking legal advice earlier or making the application earlier was a matter for Mr Lu and is not an acceptable reason for the delay.

[17] For completeness I note Mr Lu was told of the 21-day requirement on 19 November 2020 but did not make the application until 24 November 2020. There is no explanation for this period of the delay.

[18] There is no acceptable reason for the delay which weighs against granting an extension of time.

Any action taken by the person to dispute the dismissal

[19] Mr Lu as explained above did actively dispute his dismissal with the Respondent. This weighs in favour of granting an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

[20] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

The merits of the application

[21] It is only after a hearing of a matter such as this would it become clear what the reasons for the dismissal were and whether the complaints made in the application demonstrate unfairness within the meaning of the Act. Consequently, I view the merits of the application as a neutral factor in considering whether to extend time.

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

[22] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

Conclusion

The onus is on the Applicant to persuade the Fair Work Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days.

[23] In this case the sole factor weighing in favour of granting an extension is the fact Mr Lu did actively dispute his dismissal however this itself is not an exceptional circumstance.

[24] I have considered the information provided by the Applicant and considering the relevant factors here I am not satisfied that this case involves exceptional circumstances.

[25] I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Fair Work Commission and must be dismissed.

[26] An order [PR727266] to that effect will be issued in conjunction with this decision.

Final written submissions:

Applicant, 4 and 15 December 2020.

Printed by authority of the Commonwealth Government Printer

<PR727265>