Shenglong Li v Australia Visa Link Pty Ltd

[2015] FWC 7658

[2015] FWC 7658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shenglong Li
v
Australia Visa Link Pty Ltd
(U2015/13008)

COMMISSIONER ROE MELBOURNE, 6 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time and minimum employment period.

[1] Mr Li was dismissed from his employment with Australia Visa Link Pty Ltd on 31 August 2015 and lodged his unfair dismissal application on 21 September 2015. The Fair Work Commission (the Commission) notified the employer on 24 September 2015 that the application had been lodged on 21 September 2015. I am therefore satisfied that the dismissal was within 21 days after the day the dismissal took effect. There is no basis for the employer’s objection that the application was out of time.

[2] Australia Visa Link noted that Mr Li ticked “yes” on the application form to the question “have you made another claim to the Commission or any other organisation regarding your dismissal?” Mr Li says that he has not made a general protections application involving dismissal or any other application which would prevent him from making an unfair dismissal application. There is no basis to reject Mr Li’s submission.

[3] Australian Visa Link submit that they are a small business and this is not contested.

[4] Australia Visa Link submit that the period of employment was from 8 September 2014 until 31 August 2015. Mr Li says that he was employed from on or before 23 July 2014 until 31 August 2015. If Mr Li is correct then he has the minimum employment period. If Australia Visa Link are correct then Mr Li does not have the minimum employment period.

[5] Mr Li has provided extensive documentary evidence to support his contention that he was employed during the period from 23 July 2014 to 8 September 2014, the disputed period. He has provided text message correspondence dated 23 July, 2 August, and 18 August 2014 which demonstrate his involvement with Australia Visa Link in that period. The first of the text messages from Ms Zhan an employee of Australia Visa Link says “Sean you have agreed to come on this Wednesday to work right?” Mr Li has provided marketing materials which contain Mr Li’s name and mobile phone number dated 16, 20, 21, and 28 August 2014. He has also provided work sheets prepared and dated 21, 22, 26, 27, 28 August 2014.

[6] Mr Ye for the employer gave evidence that Mr Li was not employed on a regular and systematic basis during the disputed period. He said that Mr Li did do some work to demonstrate his capacities but he was only employed on a regular and systematic basis after 8 September 2014. Mr Li says that it was Mr Ye’s partner who entered into the employment arrangement with him. Mr Ye does not contest that fact. Mr Ye’s partner did not give evidence. Mr Ye could not recall how often Mr Li was paid or how often he was at work. Mr Li gave evidence that he worked from 9.30am to 5.30pm Monday to Friday during the period from 24 July 2014 to 8 September 2014. On 23 July 2014 he started at 10.30am. He cannot recall having any days off in that period. Mr Li says that he was paid about $500 cash each week and he was regularly paid on a Friday. Mr Li says he worked in the office using the work computer. The evidence of Mr Li is direct and to some extent is supported by documentary material. The evidence of Mr Ye lacks detail and particulars and in some respects is indirect given that the arrangements were entered into with Mr Le’s partner.

[7] I am satisfied that the evidence of Mr Li is sufficient for me to conclude that it is more likely than not that he was employed on a regular and systematic basis in the disputed period. I am therefore satisfied that Mr Li does have the minimum employment period and is protected from unfair dismissal.

[8] The jurisdictional objections are dismissed. The matter will now be listed for hearing including in respect to the issue of compliance with the small business code.

COMMISSIONER

Appearances:

Mr S Li representing himself

Mr T Ye on behalf of the Respondent

Hearing details:

2015

Melbourne

November 6

Printed by authority of the Commonwealth Government Printer

<Price code A, PR573701>