Song Chen v Garnet Massage Pty Ltd
[2023] FWC 2986
•20 NOVEMBER 2023
| [2023] FWC 2986 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Song Chen
v
Garnet Massage Pty Ltd
(C2023/4903)
| DEPUTY PRESIDENT DEAN | CANBERRA, 20 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – extension of time refused – application dismissed.
This decision concerns an application made by Mr Song Chen (Applicant) pursuant to s.365 of the Fair Work Act 2009 to deal with a general protections dispute involving his employment with Garnet Massage Pty Ltd (Respondent).
The Applicant states in the application that his employment came to an end on 15 June 2023 after he was forced to resign as a result of the conduct of the Respondent. His general protections application was lodged with the Commission on 14 August 2023.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The Applicant’s application was made some 39 days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows a further period in accordance with s.366(2) of the Act.
The application was listed for hearing by telephone on 15 November 2023 to consider the extension of time issue. The Applicant appeared and gave evidence with the assistance of a Mandarin-speaking interpreter. Mr Renjie Zhang, a Director of the Respondent, appeared for the Respondent.
For the reasons set out below, I decline to grant an extension of time and will dismiss the application.
Background
The Applicant commenced employment with the Respondent on 8 November 2021 in the role of a massage therapist.
In August 2022, the Applicant became a shareholder of the Respondent company. There is a dispute as to the Applicant remained an employee after this time. The Applicant claims that he continued to be an employee and performed massage work. The Respondent contends that he was not an employee, but rather a business partner participating in the management of the business.
On the Applicant’s evidence, in or about March 2023 he fell into dispute with the Respondent concerning operation procedures and other issues. The Applicant alleges that he was subject to bullying by the manager of the Respondent in the ensuing period and as a consequence began suffering from depression for which he had to seek medical help.
The Applicant tendered a letter of resignation effective from 15 June 2023.
As noted earlier, the Applicant lodged this application on 14 August 2023 alleging he was pressured to resign, and the alleged constructive dismissal was in contravention of the general protections provisions of the Act.
Extension of time
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where 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.”
The onus of establishing exceptional circumstances lies with the Applicant.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, 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 supports a finding that there are exceptional circumstances.[3]
Having considered the evidence presented by the Applicant, I am not satisfied that he has made out an acceptable explanation for his failure to file his application within the statutory timeframe.
The Applicant’s primary explanation for the delay was on medical grounds. He asserts suffering from severe stress as a result of the Respondent’s conduct and the ongoing shareholders dispute, causing depression, insomnia, migraines and suicidal thoughts. He says he was “left in a state of extreme vulnerability” due to the events leading up to his resignation and the conduct of the Respondent had severely affected his mental state.
In addition, the Applicant says being a non-English speaker he is in a particularly vulnerable position and unable to fully comprehend his rights as an employee and the procedures involved in filing the application.
Two medical certificates were provided by the Applicant. The first one dated 3 July 2023 certified that the Applicant was “unfit to continue his usual occupation on 28/6/2023 and 30/06/2023 inclusive”. The second one dated 8 September 2023 stated that the Applicant has been “suffering from moderate Depression since June 2023, on medication and having online counselling and sometimes face to face counselling with me and having some progress.”
The medical certificates do not support the Applicant’s claim that his medical conditions prevented him from filing his application within time. I am not satisfied the Applicant was incapacitated to such an extent that he was unable to make his application within time.
Further, the Applicant was assisted by wife and had access to legal advice, and so I am not satisfied that his lack of proficiency in English explains the delay.
This weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant lodged a request for the Commission’s Workplace Advice Service on 17 July 2023, about 4 weeks after his employment ended. Apart from that, the Applicant does not appear to have taken any action to dispute his alleged dismissal prior to the making of this application.
This weighs against a finding that there are exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I consider this to be a neutral consideration.
The merits of the application
For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[4]
There is insufficient information provided by the Applicant in support of his claim that adverse action was taken against him by the Respondent. Many of the matters raised by the Applicant appear to relate to his shareholders dispute with the Respondent. On the limited evidence before me, I am unable to make a final determination of the merits in this matter.
I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[5] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[6]
Neither party made submissions on this criterion and I therefore find this to be a neutral consideration.
Conclusion
Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.
An order giving effect to this decision is separately issued.
DEPUTY PRESIDENT
Appearances:
S Chen on his own behalf.
R Zhang for Garnet Massage Pty Ltd.
Hearing details:
2023.
By telephone:
November 15.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[5] [2015] FWC 8885.
[6] Ibid at [29].
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