Siming Wang v Foodao Pty Ltd

[2021] FWC 4854

[2021] FWC 4854

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Siming Wang
v
Foodao Pty Ltd
(U2021/5413)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 9 AUGUST 2021

Application for an unfair dismissal remedy application made out of time – whether there are exceptional circumstances – whether discretion to extend should be exercised – extension of time granted.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 5 August 2021. Mr Siming Wang (Applicant) was employed by Foodao Pty Ltd (Respondent) until his dismissal, which took effect on 26 May 2021. The Applicant's employment commenced on or about 10 May 2020, although there is disputation about whether that employment relationship ended shortly thereafter and a subsequent employment relationship commencement at a later date in September 2020, about which I will say more shortly.

[2] At the time of his dismissal the Applicant was employed as a part-time cashier and waiter at a restaurant operated by the Respondent. On the Applicant’s evidence, which was not challenged by the Respondent, he was paid $18 per hour, cash in hand. Whatever else might be said about that practice, the amount that the Applicant was paid appears to be less than the minimum wage prescribed in the applicable award. I set this evidence out for context because the payment of wages or whether or not there has been a contravention of a relevant award is not a matter that is relevant to any issue that I need to decide in considering whether to extend time.

[3] There is no dispute that the Applicant received notice of his termination through a social media platform, known as WeChat, from his former employer on 26 May 2021. On 21 June 2021, the Applicant lodged, electronically, an application under s.394 of the Fair Work Act (Act) seeking a remedy in connection with his dismissal which he alleges was unfair. The application was lodged outside of the time prescribed in s.394(2) of the Act, which states that an application must be lodged within 21 days after the date on which the dismissal took effect. Consequently, the Applicant's application was five days late. It is therefore necessary for me to consider whether the Applicant should be allowed a further period within which to lodge his application.

[4] The Act allows the Commission to extend the period within which an unfair dismissal remedy application may be made, but only if the Commission is satisfied that there are exceptional circumstances, taking into account various matters set out in s.394(3) of the Act.

[5] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need even to be very rare. Exceptional circumstances might include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually not particularly significant, when taken together may be considered exceptional. The requirement in the Act that there be exceptional circumstances before an extension of time is to be given is to be contrasted with other provisions in the Act which allow for late lodgement extensions, such as in the case of an application for the approval of an enterprise agreement, to be granted in circumstances where the Commission considers it to be fair to do so.

[6] As noted above, s.394 of the Act requires the Commission to take into account a number of factors in assessing whether there are exceptional circumstances. These factors are set out in s.394(3) as follows:

“(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.”

[7] Each of the matters needs to be taken into account and assessed. That is, each must be given appropriate weight taking into account the evidence.

[8] I will deal first with the reason for the delay. The explanations the Applicant gives for the delay are that he was giving the Respondent a chance to explain the reason for his dismissal and that he was seeking information about his rights in relation to the dismissal from other sources before lodging his application. During oral evidence, the Applicant also contended that he was unaware of the 21-day time limit for the lodgement of unfair dismissal remedy applications.

[9] The delay with which s.394(3)(a) is concerned is the delay which follows the expiration of the 21-day period until the date of lodgement. Self-evidently, before the 21-day period has expired there is no delay, although the steps that are taken during the 21-day period might be relevant in assessing whether the explanation for the delay is an acceptable explanation. On the Applicant's own evidence, he was of the view that his dismissal was unfair immediately or shortly after he received notice of his dismissal by WeChat. The Applicant said that he sourced the Commission's website and information on the website about unfair dismissals the day after he was dismissed. The reasons given by the Applicant concerning waiting for the employer to explain the reasons and sourcing information about his unfair dismissal rights do not appear to me to be satisfactory explanations for the delay.

[10] The information that he needed to lodge an unfair dismissal application is contained on the Commission’s website. On his own evidence, he accessed that information on the day after his dismissal. While waiting for his former employer to explain the reasons for his dismissal might explain why he did not lodge an unfair dismissal application on the first day or perhaps even the week after his dismissal, it does not explain any of the period of delay following the expiration of 21 days. That is, it does not explain why his application was five days late.

[11] It should have been obvious to the Applicant shortly after his dismissal, and certainly within the 21-day time limit, that the Respondent had no intention of explaining to him the reason for his dismissal. I accept that as the Applicant's first language is not English and as the Commission's web site does not contain a Mandarin translation of the information, it was appropriate for the Applicant to seek other sources of information in Mandarin, but no explanation is given as to why that did not or could not occur within the 21-day time period, allowing the Applicant to lodge his application within time. I do not accept that sourcing information from elsewhere provides a satisfactory explanation for the period of delay.

[12] As to the Applicant's state of knowledge of the 21-day time limit, the general proposition is that ignorance of the law does not provide an excuse or, in this case, a satisfactory explanation for the delay. Nonetheless, I accept that because the information on the Commission's website is in English only that although the Applicant consulted the website, he was unaware that he had to act promptly at least initially.

[13] Taken together, whilst I do not accept that his lack of knowledge of the 21-day time limit provides a satisfactory explanation for the delay, I do accept that the language barrier acts as an ameliorating factor in assessing the weight that should be given to the absence of an acceptable explanation or reason for the delay. Normally the absence of an explanation for the whole of the period of delay would weigh against a conclusion that there are exceptional circumstances, and as I do not consider, in this case, that there has been a satisfactory explanation for the whole of the period of the delay this might weigh significantly against such a conclusion. However, I can well appreciate that language difficulties may have contributed to the Applicant’s understanding of the time frame required for lodging an application. This is not simply a case where the applicant, failing to make inquiries about his rights, remained ignorant to the time limitation. This is a case where his understanding of the time limitation was hampered by a language barrier. The weight to be given to this consideration must in the circumstances be adjusted appropriately.

[14] Taking these matters into account and given that the period of the delay is relatively short, the question of the reason for delay should appropriately be weighed neutrally, that it, is neither weighs in favour of nor against a conclusion that there are exceptional circumstances.

[15] I turn next to the question of whether the Applicant first became aware of the dismissal after it took effect. As I have already indicated, it is uncontroversial that the Applicant was told of his dismissal on 26 May 2021 and that is the day on which the dismissal took effect. This is not a case where the Applicant became aware of his dismissal after it had taken effect. In the result, the Applicant had the benefit of the full 21-day period within which to lodge his application. In those circumstances, this factor weighs against the Applicant.

[16] Turning next to the question of the action, if any, taken by the Applicant to dispute his dismissal. It is uncontroversial that, and on the Applicant's own evidence, he did not take any step, beyond lodging this application, to dispute his dismissal. Action taken by an employee to dispute their dismissal has the effect of putting an employer on notice that the dismissal is in dispute. Had such action been taken, then that matter would normally weigh in favour of the Applicant. Thus, because no action was taken and the employer became aware of the dispute about the dismissal only after the application was lodged, the absence of any action taken by the Applicant weighs against him and a conclusion that there are exceptional circumstances.

[17] Turning next to the question of whether there is any prejudice to the employer, including prejudice caused by the delay. The Respondent does not make any submission that there would be any prejudice or that there is any prejudice to the Respondent. Certainly, if an extension of time is granted, the Respondent will suffer prejudice in the sense that it will need to defend the unfair dismissal remedy application, but that is the case in every application for an extension of time and it is not that kind of prejudice with which this consideration is concerned.

[18] Here the relevant period of the delay was quite short, only five days. The relevant decision-maker for the dismissal gave evidence before me and he has since informed me, during his submissions, that he has now identified the employee who made allegations about the Applicant which in the result led to the dismissal. The delay is not of a kind that would affect, in a significant way, the memory of those who are likely to give evidence nor has it been suggested that witnesses for the Respondent are unavailable because of the delay.

[19] It is apparent that there is no prejudice, generally, as a consequence of the delay, that will be suffered by the Respondent. The absence of prejudice will rarely, on its own, justify a conclusion that there are exceptional circumstances, but the absence of prejudice, nonetheless, must be given weight and, in these circumstances, is a factor that weighs in favour of the Applicant.

[20] Turning then to the merits of the application. It seems uncontroversial that on the date on which the Applicant was dismissed he was given no reason for his dismissal. He was dismissed in a perfunctory way by message from the Respondent on WeChat. The Respondent contends that the Applicant committed serious violations of health and procedures, that it therefore tried to contact him at 9:00pm on 26 May 2021, but that he rejected the Respondent's request, presumably to contact him, without any “unconvincing reasons” (sic), by which I assume the Respondent means convincing reasons, and so the Respondent dismissed the Applicant.

[21] The Respondent contends its restaurant business was required to comply with “government rules”, presumably in relation to COVID-19 health measures and restrictions. It maintains that it monitored employees’ body temperatures and that in the event that an employee's temperature was higher than 37 degrees Celsius, it was the Respondent’s practice to send the employee home and require the employee to self-isolate. The Respondent contends that the Applicant concealed his health condition and the fact that he had a fever on the day of his dismissal while at work, stating “we heard from other employees that he [has] got a fever”.

[22] Apart from objecting to the application on the ground that it was made out of time, the Respondent also objects on the basis that it is a small business and has complied with the Small Business Fair Dismissal Code. Furthermore, although it did not indicate this to be the case in its employer response form, it also now says that the Applicant did not complete the minimum employment period and so his application was not validly made.

[23] While the consideration of the merits of the case in an extension of time hearing will not involve the final determination of the merits, or indeed of the other jurisdictional issues raised, a view should nonetheless be arrived at as to the merits of the case so that appropriate weight may be given to a mandatory consideration. What follows is my preliminary views about the merits based on the limited evidence and material that is currently before me. The view that I give is necessarily very preliminary and is expressed solely for the purpose of making an assessment as to the weight that should be given to the merits consideration.

[24] I will deal first with the question of compliance with the Small Business Fair Dismissal Code. Before doing so I make the observation that there is no evidence before me one way or the other that the Respondent is a small business, but I am prepared to proceed on the basis that it is for the purposes of this assessment.

[25] The Applicant was dismissed immediately, that is summarily without notice and without warning. This much is accepted by the Respondent in its employer response form. An employer will comply with the Small Business Fair Dismissal Code if an employer dismisses an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.

[26] On the evidence given before me, Mr Chen, the Respondent's restaurant manager, made the decision to dismiss the Applicant. Mr Chen formed the view that the Applicant had hidden the fact that he had a fever. He did not form that view because he observed or spoke to the Applicant at the restaurant or because he spoke to another employee who had either observed the Applicant with a fever or had taken a temperature measurement of the Applicant. He formed the view on the basis of a then unidentified employee having a conversation with another person who then communicated that conversation to Mr Chen. Apart from attempting to call the Applicant during the evening of 26 May 2021, Mr Chen took no other step to verify the veracity of the claim made. Without forming a concluded view, it seems to me that the Respondent will have a very steep mountain to climb to persuade the Commission that the view or belief that Mr Chen formed was formed on reasonable grounds. A similar assessment results in relation to the other contended reason – the failure by the Applicant to responded to a telephone call or calls from Mr Chen during the evening of 26 May 2021.

[27] In the event that the employer is unsuccessful in its maintenance that it complied with the Small Business Fair Dismissal Code, for similar reasons the Respondent will face some degree of difficulty establishing that either of the two reasons it appears to give for the dismissal, the failure to answer telephone calls whilst the applicant was home, not working nor required for work and the alleged failure to disclose a fever, constituted a valid reason for the Applicant's dismissal related to the Applicant’s capacity or conduct. The first because there would be an insufficient connection between the failure to answer a phone call out of hours and his employment; the second because on the evidence that is currently available the employer will have difficulty establishing as a matter of fact that the Applicant had a fever much less that he deliberately failed to disclose that fact.

[28] Turning then to the second objection that is raised more recently in the course of responding to the case for an extension of time; namely, that the employee did not complete the minimum employment period. The essential proposition advanced by the Respondent is that the Applicant had been employed by the Respondent for less than one year and that on or about 7 June 2020 the Respondent informed the Applicant that it might not or would not continue to employ him due to its lockdown policy.

[29] The Respondent contends that on 7 September 2020, it asked the Applicant to return to the restaurant and he accepted that request and did so. This it contends was the beginning of a new and separate employment relationship. It says that there had been a break in the continuity of employment so that the Applicant did not complete the minimum employment period which, for a small business employer, is 12 months. As I indicated earlier, it is uncontroversial that the Applicant commenced his employment in or about 10 May 2020.

[30] It is also uncontroversial that he was employed as a part time employee, although it appears to be accepted that during the lockdown period which occurred in Victoria in the middle and latter part of last year the Applicant was unable to work for the Respondent for some of that period because the Respondent was not permitted to operate a dine-in service. Apart from the Respondent's assertion there is no probative evidence at this stage that the employment relationship came to an end on or about 7 June 2020. For example, there is no material suggesting that accrued annual leave was paid to the Applicant on termination in accordance with the National Employment Standards. Mr Chen did not say that such payment was made. There is no evidence of any notice given or any payment in lieu of notice made and Mr Chen did not say that any of this had occurred. It is not in dispute that the Applicant was not paid wages during the period.

[31] At this preliminary stage I consider that one of two things are likely to explain the period at issue. First, during that period the Respondent lawfully stood down the Applicant because of a shortage of work for which it could not reasonably be held responsible. That is, it effected a stand down in accordance with the right of an employer to stand down under s.524 of the Act. If that is correct, then that period of stand down is not a period that does not count as service, as is evident from s.22(2) of the Act. In other words, the period counts as service.

[32] The other possible construction of what occurred is that the employer, in breach of the contract of employment and contrary to s.524 of the Act, unlawfully stood the Applicant down. At common law, that might be regarded as a repudiation; an indication that the employer no longer wishes to be bound by the contract. If that were the case, the Applicant had an election to bring the employment to an end if he wished. There is no indication that that occurred. The contract of employment remained on foot. It is likely also, absent a contra indicator, the employment relationship continued. Given that the period for which the employee was absent was something initiated by the employer, it is unlikely that that period of absence might be regarded as not authorised. It is only periods of unauthorised absences which do not count towards service under s.22 of the Act. Periods of authorised absences count towards continuous service for the purpose of assessing the period of employment.

[33] In short, the Respondent faces a steep climb to persuade the Commission that the period of employment commenced at a later date than 20 May 2020 and was not continuous from that date.

[34] Although, as I have indicated, I make no final determination on any of these issues, bearing in mind that I have had the opportunity to hear the oral evidence given by those who are likely to give evidence in the final hearing, on the basis of the material and the evidence at hand or before me now, I consider the Applicant's merits case to be very strong. In those circumstances this consideration weighs in favour of the Applicant and in favour of a conclusion that there are exceptional circumstances.

[35] As to the fairness consideration, neither party made any submission about this issue. Generally, this consideration might relate to matters that are currently before the Commission involving employees of the same employer. It may also relate to similar circumstances by other employees in different cases before the Commission. But there is no evidence, nor any other material before me, to suggest that this consideration should be given any weight. In those circumstances I propose to assign neutral or no weight, one way or the other, to this consideration.

[36] As should be apparent from the reasons given earlier, the reason for the explanation for the delay weighs neutrally in the circumstances. The consideration whether the Applicant first became aware of his dismissal after it took effect weighs marginally against the Applicant. That the Applicant did not take any action to dispute his dismissal weighs against the Applicant. That there is no prejudice or no relevant prejudice to the employer weighs, marginally, in favour of the Applicant. The fairness consideration weighs neutrally

[37] On the basis of the material available to me and for the reasons articulated earlier, the merits of the claim weigh strongly in favour of the Applicant.

[38] Therefore, taking into account all of the considerations, both individually and collectively, the merits of the application are, at this preliminary stage, assessed as being so strong as to warrant a conclusion that there are, in the context of a short delay and the other considerations discussed, exceptional circumstances.

[39] Because there are exceptional circumstances, that allows me to consider whether I should grant an extension of time. There are no matters about which I am aware which would suggest that an extension of time should not be granted. The merits of the case, as I have assessed, point strongly to my exercising my discretion in favour of extending time. I propose to do so by allowing a further period, until 21 June 2021by which the Applicant may lodge his application. The application, having been lodged within a further time period allowed by the Commission is one that is validly made.

Order

[40] I order that the Applicant be allowed a further period, until 21 June 2021, to lodge his application.

DEPUTY PRESIDENT

Appearances:

Mr S Wang on his own behalf
Mr Z Chen on behalf of the Respondent

Hearing details:

2021
Melbourne
5 August

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