[2016] FWC 3695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shulin Li
v
Hofmann Engineering Pty Ltd
(U2016/5614)

COMMISSIONER CIRKOVIC

MELBOURNE, 8 JUNE 2016

Application for relief from unfair dismissal – whether to extend time for lodging the application

[1] Mr Shulin Li (the Applicant) alleged that the termination of his employment by Hofmann Engineering Pty Ltd (the Respondent) on 22 February 2016 was unfair.

[2] His unfair dismissal application lodged on 22 March 2016 was not made within 21 days of the date of the dismissal as required by s.394(2) of the Fair Work Act 2009 (Cth)(the Act). The application was lodged 8 days out of time.

Legislative scheme

[3] Subsection 394(2) of the Act provides that an application under s.394 must be
made within 21 days after the dismissal took effect:

(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).

[4] Subsection 394(3) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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 like position.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 1where the Full Bench said:

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[Endnotes not reproduced]

[6] As can be seen above, an unfair dismissal application “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents
...
(2) A document must be lodged with the Commission by:
(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or
(b) sending the document by post to an office of the Commission; or
(c) emailing the document in accordance with rule 14; or
(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or
(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[7] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 2

[8] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, contained the following statement:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.”

Background

[9] On 11 April 2016, the parties were advised by the Fair Work Commission (the Commission) that the application had not been made within 21 days of the dismissal taking effect. Directions were issued for the filing of witness statements and submissions as to whether the Commission should grant further time for lodgement pursuant to s.394(3) of the Act. The matter was listed for hearing on Thursday, 26 May 2016.

[10] The Applicant was self-represented. The Respondent was self-represented.

Matters to be taken into account pursuant to s.394(3)

[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.394(3) above. I will deal with each of those matters separately.

(a) The reason for the delay

[12] The Applicant submits:

“1. No anyone told me.
2. I don’t have Internet access,
3. I was busy moving rented house, clean the rented house and paid all the bills.
4. Wait for payment.
5. I was waiting for the separation certificate.
6. I called the Fair work ombudsman, 131394 wrong number or take me long time, then I find out they are not doing dismissal case
7. My tooth had some problems hurts after removed 2 weeks ago. Had some gum problems.
8. Doing re-search for my case.
9. If I am entitle for minimum 3 weeks notice, my application made with in 21 days
10. no money to argue my case”. 3

[13] The Respondent submits in response to the Applicant’s submissions:

“1. No anyone told me
Mr. Li’s attached termination letter presented to him on 22nd February, 2016 explicitly stated that he could seek information from the Fair Work Ombudsman via 131 394 or
2. I don’t have internet access
Mr. Li phoned Hofmann Engineering’s office manager on 9th March 2016 and requested his separation certificate to be emailed to him to the personal e-mail address through which he had received all previous external electronic communication such as fortnightly pay slips. This request therefore conflicts with and contradicts his above claim. Mr. Li’s claim is immaterial as the Fair Work Commission can be reached by telephone for which access to the internet is not required.
3. I was busy moving rented house, clean the rented house and paid all the bills
In our view, contacting and lodging an application for unfair dismissal is not a lengthy process and the period during which he could have lodged the application was sufficient.
4. Wait for payment
Mr. Li was paid all entitlements including payment in lieu of notice on 2nd March 2016. This occurred on occasion of the next pay cycle in line with Hofmann Engineering’s pay process.
In our view, this claim has no merit as to delaying an application for unfair dismissal.
5. I was waiting for the separation certificate.
On 22nd February, 2016, Mr. Li was given the attached spreadsheet outlining his entitlements along with his termination letter. On 9th March, 2016 Mr. Li phoned Hofmann Engineering’s office manager requesting a separation certificate (attached) This was emailed to him on 9th March 2016.
In our view, this claim has no merit as to delaying an application for unfair dismissal as the separation certificate is a document required to apply for benefits from Centrelink.
6. I called the Fair work ombudsman, 131394 wrong number or take me long time, then I find out they are not doing dismissal case
Mr. Li’s attached termination letter stated that he could seek information from the Fair Work Ombudsman via 131 394 or
The information provided is in accordance with the guidelines of Fair Work and part of the suggested template for termination notices.
7. My tooth had some problems hurts after removed 2 weeks ago.
Unless Mr. Li has a medical certificate stating his incapacity for the application time frame, in our view, this claim has no relevance to the requested extension.
8. Doing re-search for my case.
In our view, the legislative time frame for lodging an application is sufficient and Fair Work provides a user friendly and straight forward application process that does not require extensive research.

In addition, Mr. Li made no attempt or request Hofmann Engineering for an internal review of the matter.
Mr. Li agreed with the facts presented to and discussed with him on the day. He did not dispute his repeated and unacceptable conduct.” 4

[14] For this consideration there must be an acceptable reason for the delay 5 and this must be for the whole period that the application was delayed.6 I am not satisfied that the Applicant has provided a reasonable explanation for the whole of the delay. This weighs against a finding of exceptional circumstances.

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

[15] The Applicant was notified of his dismissal on the day it took effect. 7 He had the full 21 days to lodge his application. This weighs against a finding that there are exceptional circumstances.

(c) Any action taken by the person to dispute the dismissal

[16] Action taken by an employee to contest the dismissal, other than lodging an unfair dismissal application, may favour the granting of an extension of time. 8

[17] The Applicant submits that he used a public phone to call back the Respondent to ask for a separation certificate, confirm some details and wait for payment. 9 He does not make any further submissions about any attempt to dispute the dismissal. On the materials before me, there is nothing which demonstrates the Applicant took action to contest his dismissal, other than lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

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

[18] Prejudice to the employer will go against the granting of an extension of time. 10 The Respondent submitted that the delay is now causing the company additional management resources.

[19] While I note the Respondent’s submission, it goes more to the issue of inconvenience as opposed to prejudice. Accordingly, I consider this factor to be a neutral consideration.

(d) Merits of the application

[20] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 11 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result the Commission should not embark on a detailed consideration of the substantive application.12 I have not done so. Accordingly, I am not able to make a final assessment of the merits as there are factual disputes, between the parties, that have not been tested. I find this criterion to be neutral.

(e) Fairness as between the person and other persons in a like position

[21] This consideration may relate to fairness in matters of a similar kind that are either currently before the Commission or that have been decided in the past. 13 However, there were no submissions that there is, or has been, any persons in a similar position to the Applicant. I find this criterion neutral.

Conclusion

[22] In establishing whether exceptional circumstances exist the Commission must take into account the factors listed in s.394(3) of the Act. The expression “exceptional circumstances” while not specifically defined in the Act has been accepted in this Commission as circumstances which need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[23] A conclusion that there are exceptional circumstances, taking into account the statutory considerations is required before the discretion to extend time can be exercised. The discretion should be exercised having regard to all of the circumstances including the legislative considerations and will come down to a contemplation of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended. 14

[24] Having considered all of the factors set out in s.394(3), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394(3). Accordingly, the application is dismissed.

[25] An order to that effect will be published separately to this decision.

COMMISSIONER

Appearances:

Shulin Li, Applicant;

Samuel White, for the Respondent.

Hearing details:

2016

26 May.

1 [2011] FWAFB 975.

2 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403

3 Unfair Dismissal Application F2 22 March 216, answer to question 1.4 & Applicant outline argument extension of time 11 May 2016, answer to question 4

4 Employer Response Form F3 18 April 2016, answer to question 2.2

5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

6 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408-409

7 Applicant outline argument extension of time 11 May 2016, answer to question 1

8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

9 Ibid, answer to question 5

10 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

11 Haining v Deputy President Drake (1998) 87 FCR 248, 250

12 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14].

13 Wilson v Woolworths [2010] FWA 2480, [24]-[29]

14 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

Printed by authority of the Commonwealth Government Printer

Shulin Li v Hofmann Engineering Pty Ltd

[2016] FWC 3695

8 JUNE 2016

DECISION