Steven Wenpei Hu v Anker Innovations Australia Pty Ltd
[2024] FWC 2871
•16 OCTOBER 2024
| [2024] FWC 2871 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Steven Wenpei Hu
v
Anker Innovations Australia Pty Ltd
(C2024/2745)
| COMMISSIONER PERICA | MELBOURNE, 16 OCTOBER 2024 |
Application to deal with contraventions involving dismissal
On 28 April 2024, Mr. Steven Wenpei Hu filed a Form F8 for the Commission to deal with a general protections dispute involving dismissal under s 365. In that form, he states his start date at Anker Innovations Australia Pty Ltd (“Anker”) was 4 January 2022 and his effective dismissal date as “I don’t know the exact date.”. He claimed the reasons for dismissal as the exercise of workplace rights, industrial activities, physical and mental disability and political opinion. He also stated that he had lodged the application with the 21 day time limit for filing these applications.
On 15 May 2024, he filed an amended application which was more detailed. It stated the date he was notified of his dismissal was 7 February 2024 and the effective dismissal date as 31 March 2024. He also conceded that his application was not made within 21 calendar days of the dismissal taking effect.
On 6 June 2024, the solicitors for Anker filed its Form F8A response. The response made two jurisdictional objections:
There had been no dismissal within the meaning of s 386 because the employment had come to an end due to Mr. Hu’s voluntary resignation by e-mail on 5 February 2024 which was formally accepted by Anker on 7 February 2024.
The application was made out of time because Mr. Hu’s employment was terminated on 31 March 2024 and his application was filed on 28 April 2024, which was 28 days after the date his employment terminated. This meant the application was made seven days outside the 21 day time limit prescribed for these applications.
Directions were issued for the hearing of the out of time objection and the no dismissal application.
The matter was heard on 24 July 2024. Mr. Hu represented himself and made submissions and gave sworn evidence with the assistance of an interpreter. Anker was represented by Ms. Jane Delahey, a Senior Associate of the firm Landers & Rogers. Mr. Jophy Zhou, the Senior Human Resources Manager with Anker, gave some evidence in English but sometimes sought the assistance of an interpreter.
For the following reasons, I have decided not to extend time for the making of this application and the application is dismissed.
ORDER FOR DETERMINING THE OBJECTIONS
The first question to be determined is whether I am prepared to allow a further period for the filing of the application under s 366(1)(b). If I do not allow a further period, the contest as to whether Mr. Hu was dismissed is otiose.
I adopt by analogy the reasoning of the Full Bench in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Ltd.[1] In that appeal, the Bench considered the order of determining jurisdictional objections to an unfair dismissal application. The Full Bench found “...it is not a proper approach to deal with any of these objections before finding that an application is made within the required period or granting a further period and then determining… [the other jurisdictional objection].”[2]
I will deal with the extension of time issue first. If I am satisfied that there are exceptional circumstances based on the factors in s 366(2) to allow the further period, I will then consider the no dismissal objection.
WAS THE APPLICATION MADE WITHIN 21 DAYS AFTER THE DAY THE DISMISSAL TOOK EFFECT?
General protections disputes involving dismissal are required to be made within 21 days after the dismissal took effect. The 21-day period does not include the date on which the dismissal took effect.
Mr. Hu’s oral evidence was somewhat confused on the date of his dismissal. At one point, he conceded that 31 March 2024 was “actually the dismissal date”[3] and then he stated even after 31 March 2024, he received “inquiries from staff or clients”.[4] This is not consistent with his amended form F3 which gives his dismissal date as 31 March 2024.
On all the material filed in this matter, I find Mr. Hu’s last day of employment was 31 March 2024. For the purposes of the extension of time application, I find that to be the date on which the dismissal took effect. This means the final day of the 21-day period was at 11:59 PM on 21 April 2024.
Mr. Hu filed his original application at 6:11 PM on 28 April 2024, which was 7 days late. It follows the application was not made in time.
I have power to extend time for making an application if I am satisfied that are exceptional circumstances under s 366(2) taking into account the following factors:
Mr. Hu’s reasons for the delay;
Any action taken by Mr. Hu to dispute the dismissal;
Prejudice to Anker (including prejudice caused by the delay);
The merits of the application; and
Fairness as between Mr. Hu and other persons in a similar position.
Each of these matters must be considered in assessing whether there are exceptional circumstances. I set out my consideration of each of these matters below.
REASONS FOR THE DELAY
Submissions of Mr. Hu
The conduct of Anker’s staff
Mr. Hu argues that “before the contract expired. Anker revoked my access rights to position related and personal forms. This directly prevented me from timely securing much of the evidence. The revoked permissions included my access to the Melbourne office space (where many unfavourable physical evidence related to Anker was forcibly removed and destroyed, subsequently)”.[5]
Mr. Hu also argued he “had interactions with five Anker HR personnel… Throughout that process, Anker “consistently promised to fulfil the protections owed to employees, including payment for accrued annual leave re-imbursement for work related expenses and other social benefits. I maintained my belief that the matter would be handled appropriately and trusted the HR departments explanation of going through internal processes. Unfortunately, this lead me to miss the submission deadline”.[6] He also submits that “Anker deliberately orchestrated this outcome[7]”
Mr. Hu filed limited documentary evidence of these post-employment interactions. Some of the documents before me included:
A February 2024 e-mail between Mr. Zhou and Mr. Hu concerning a complaint that “my personal belongings have been removed away from my workstation.”[8]
A 7 March 2024 e-mail from Mr. Zhou to Mr. Hu noting “Ms. Whitney Long is the new human resource business partner” and stating “we did not close your access for EA/EC”.[9]
A 2 April 2024 text message between Mr. Hu and a “new human resource business partner” where she stated, “who asked you to contact me are you a new person” and it appears Mr. Hu requests details of her e-mail.[10]
A 4 April 2024 e-mail from Mr. Hu to “Whitney” that notes: “I cannot show you the error since my credentials has been removed/account deleted”. It goes on to note a “discrepancy in my last pay slip”.
A 10 April 2024 e-mail between Mr. Hu and “Tierry” related to “a discrepancy in my latest pay slip” that notes “Because Anker has deleted my account, thus I’m unable to take any action to address this issue. However, I don’t believe this should serve as a justification for Anker to avoid paying the remaining balance”.[11]
A 26 April 2024 e-mail between Mr. Hu and “Tierry” that notes “I have been removed from Xero and can no longer access my account. I still haven’t received the remaining payments”.[12]
A 15 May 2024 e-mail between “Kris” and Mr. Hu (which is after the application had been filed).
Mr. Hu also submitted “Anker revoked all my access rights to position related and personal platforms” which he argues “prevented me from timely securing evidence”.
His Mental Health
Mr. Hu gives his mental health as a reason for the delay. He says he has “used medication to manage his symptoms” and “medication sometimes has side effects”.[13] He also says, “I have been mentally and physically exhausted… I sought psychological counselling, consulted with the family doctor. The combination of unemployment related financial pressure and life stress has left my mental state unstable.”[14]
In submissions separate from his extension of time submissions he states that he has experienced severe depressive symptoms and has been taking medication for depression since 31 March 2024 and continues to do so seeking ongoing medical treatment counselling service and his psychological state remains unstable.[15]
Mr. Hu also filed a medical certificate from Dr. Leslie Fong Lee of Casey Medical Centre, his treating General Practitioner, dated 13 June 2024.[16] It confirms Mr. Hu visited his doctor on 2 April, 12 June and 13 June 2024 and states:
“Wenpei has a mental consultation with myself on 19 February 2024 with work related stress he was provided with anti-depressants for his anxiety depression symptoms to assist in his management.”
Economic pressure
Mr. Hu also argues “economic pressure caused delays in submitting necessary documents”.[17]
Submissions of Anker
Conduct of Anker staff
Anker submits Mr. Hu has provided “no evidence” in support of the claim that Anker’s conduct is a reason for delay. It also submits “to the extent Mr. Hu’s position is that he was in communication with Anker about matters after 31 March (whether about his entitlements or any other matter), Mr. Hu has not explained how this prevented him from filing on time”.[18]
Mental Health
Anker argues that although Mr. Hu has provided evidence he has mental health issues, he “has not provided any evidence or sufficiently explained how this condition prevented him from filing on time”.[19]
On the medical certificate Mr. Hu provided, Anker says the Certificate does not provide any information about the impacts or manifestations of Mr. Hu’s medical condition; the side effects (if any) of Mr. Hu’s medication or the severity of those side effects; or Mr. Hu’s mental health in the period ending 31 March 2024 and the filing of the application on 28 April 2024.[20]
Anker leans heavily on the decision of Deputy President Boyce in John Musique v Bouradas Investments Pty. Ltd [21] that the “mere existence of mental health issues does not result in the Commission being satisfied that there were exceptional circumstances”. In Musique, the Deputy President states:
“…it is not the existence of the mental health condition that has found to lean towards an “unusual” or “uncommon” circumstance. It is a feature of that mental illness (such as the severity of the symptoms) that distinguishes an applicant’s experience of that illness as being of a special or distinct class.”[22]
Anker also argues that Mr. Hu’s own evidence shows “He was well enough to engage in communication with Anker concerning his entitlements throughout the relevant period between 31 March to 22 April 2024”, giving as an example the correspondence with Anker’s HR team on 4 and 10 April 2024. It concludes, “given Mr. Hu was well enough to engage in this correspondence, an inference can be made that he was well enough to file his application on time”.[23]
Economic Pressure
On the issue of economic pressure, Anker argues Mr. Hu has not provided any explanation or evidence on this reason and on that basis I should “reject this submission”.[24]
Consideration
The conduct of Anker’s staff
One of the reasons given by Mr. Hu for the delay is that he was cut off from Anker’s work systems from 21 February 2024 which prevented him from “securing much of his evidence”.
The early removal of Mr. Hu from the systems of Anker while he was on gardening leave might be unusual. It is, however, not unusual for former employees to be cut from access to work systems after their employment has ceased. The “disadvantage” in “securing evidence” is shared by most employees once their employment ceases. This circumstance cannot be regarded as out of the ordinary course.
The other reason related to the conduct of Anker is that its staff “consistently promised”
Mr. Hu to “fulfil the protections owed to employees, including payment for accrued annual leave re-imbursement for work related expenses and other social benefits.” On that basis, Mr. Hu “maintained his belief the matter would be handled appropriately and he trusted the HR departments explanation of “going through internal processes.”
There is nothing in the documents for the period after Mr. Hu’s employment ended that could be seen as a “promise” the entitlements he was pursuing would be paid. None of the correspondence following the end of his employment where he questioned his entitlements can be described as a negotiation. In any event, a demand for entitlements following the ending of an employment relationship is routine and not out of the ordinary.
Mental Health
The Commission has stated that where one party submits health problems as an impediment to lodging an application is a matter of evidence.[25]
The medical certificate on which Mr. Hu relies does not diagnose him as having the medical condition of depression or an anxiety disorder but rather “anxiety depression symptoms”. A medical diagnosis of a mental health condition may be described as unusual but experiencing “anxiety depression symptoms” on a cessation of employment might not be unusual.
The certificate does not explain the severity of his symptoms or why the “anxiety depression symptoms” prevented him from filing the application. The certificate notes Mr. Hu has been prescribed anti-depressants but does not specify the particular drugs, the nature of their side effects, or their severity. Mr. Hu states “medication sometimes has side effects” but does not describe what those side effects are or why they caused him to delay filing his application.
I accept the proposition put by Anker that Mr. Hu was well enough to engage post-employment in communications with Anker regarding his entitlements support an inference that he was well enough to file his application in time. The medical evidence neither explains why his anxiety depression symptoms or the side effects of the anti-depressant drugs were an impediment to lodging an application. This does not provide a sufficient basis to find that his mental health issues were exceptional circumstances.
Economic pressure
Mr. Hu does not articulate why the “economic pressure” he was experiencing caused a delay in filing his application. It is entirely usual for a person who has lost their employment to feel economic pressure.
Findings on reason for delay
It follows neither the conduct of Anker, nor the mental health issues or the economic pressure Mr. Hu suffered are adequate reasons for the delay. This factor counts against a finding of exceptional circumstances.
Any action taken by Mr. Hu to dispute the dismissal
The submissions Mr. Hu made in relation to this factor give a narrative of what he says occurred in interchanges with the General Manager of Anker, Mr. Zhou, and various human resources staff of Anker before and after the cessation of his employment.[26]
It is not clear from Mr. Hu’s submissions whether the “objections” he raised in correspondence he had with various Anker personnel disputed his proposed “dismissal”:
Mr. Hu refers to a conversation he had with the general manager about his final salary and benefits. Mr. Hu was informed Anker “had decided to pay the performance bonus for the quarter, citing the reason I had not stayed for the entire quarter (at that time my KPI completion rate was already 108%). I found this unreasonable and raised an objection.”[27]
Mr. Hu states that “HR told him his “resignation” [his quotation marks] had been accepted but disagreed with the condition of working until the end of March. They also informed me they would similarly not pay the performance bonus for the quarter due to “not working the entire quarter”. Mr. Hu states he “raised objections”.[28]
Mr. Hu also claims that he “pointed out the actions [or Anker] were illegal in Australia”.[29]
E-mail exchange between Mr. Hu and Mr. Zhou from 5 to 20 February 2024
Mr. Hu sent some e-mails prior to the cessation of his employment that could constitute “action taken to dispute” his dismissal but they must be placed in a context.
Mr. Zhou in his statement attaches an e-mail chain between himself and Mr. Hu which was initiated by an e-mail from Mr. Hu dated 5 February 2023 at 9:47 PM where he wrote to “notify the company that” he is “about to move to another adventure please treat this e-mail as an official request of resignation.[30]
Mr. Hu followed up on 10:11 AM on that day where he relevantly stated “I would like to see my last date at Anker as 31 March 2024”.[31] The facts surrounding the circumstances of the sending of these e-mails is disputed.
Following a meeting of 6 February 2024 (what transpired at the meeting is disputed), Mr. Zhou sent an e-mail to Mr. Hu on Wednesday 7 February 2024 at 11:15AM to the effect that his resignation was accepted and… agreed his last working date as 31 March 2023 and … we request that you start to release from work beginning 21 February 2024”.[32]
In an e-mail dated 7 February 2024 at 5:05 PM, Mr. Hu sent an e-mail to Mr. Zhou which included:
“You made it clear in our morning meeting today that if the employee rejects the company’s “plan” the company will still force the employee to leave by terminating their service contract even if the company is aware and agree to the employee’s resignation. You also warned me that you would e-mail to “terminate” instead of “accept resign” which I felt was severely threatened and upset about the solution and statement you made during the conversation as a representation of the company that I have devoted more than two years of my life to.
However, this e-mail of yours [accepting the March 31 departure dated and proposing 21 Feb as the last day of actual work] seems to contradict your early statement. So I want to check if I have got this right…. [Mr. Hu then seeks to clarify various aspects of his entitlements on the 31 March cessation of employment] and then asks “I want to know exactly what I will get paid for each of these benefits” and “how I can access information at a later stage if I leave early”:
On 19 February 2024 at 5:20 PM, Mr. Zhou sent an e-mail which included “Firstly, I would like to clarify that this is not an e-mail to unilaterally terminate your contract. According to previous e-mail exchanges, this is the company’s response to your resignation request and is making reasonable requests.”
On 19 February 2024 at 6:03 PM, Mr. Hu replied by an e-mail which stated:
The time I submitted my resignation request I requested 31 March 2024 as my last day at Anker, which needs to include my access to relevant resources, workstation in the office, and the opportunity to exceed the target.
My employment contract explicitly stated as an employee I need to submit a resignation request to the employer at least four weeks in advance.[33]
The company does not have the right to unilaterally terminate my position without my authorisation, nor to revoke the work authority assigned to my position. It is worth emphasising that I have never accepted the companies unilateral notice of February 21 as my last day.
Regarding the company’s unilateral announcement of my termination date internally and externally, I have consulted with a few local legal agencies in Australia and have confirmed that the company’s action has substantially constituted termination. Regardless of how the company describes in writing, Australian law will determine the outcome based on actual events, it is worth noting that you explicitly threatened to “use resignation wording BUT are going to handle his matter as a termination”. At least now your words and actions are very consistent.
In an e-mail sent on 20 February 2024 at 5:20 PM, Mr. Zhou clarifies that this means Mr. Hu’s “actual last working day is February 21 and March 31 is the actual termination date of your contract.”[34]
Anker’s submission on this e-mail exchange is:[35]
“The evidence shows that from 5 February the parties engaged on the basis Mr. Hu had resigned from his employment as of that date, and communications and discussions that followed where about whether Mr. Hu would be placed on gardening leave during part of his notice period, and other issues such as the calculation of his quarterly bonus and annual leave accrual. There is no evidence Mr. Hu disputed the cessation of employment.”
The submission of Anker that “there is no evidence Mr. Hu disputed the cessation of employment” is not persuasive. In the 19 February 2024 e-mail, Mr. Hu states:
“The company does not have the right to unilaterally terminate my position without my authorisation, nor to revoke the work authority assigned to my position”; and
“Regarding the company’s unilateral announcement of my termination date internally and externally, I have consulted with a few local legal agencies in Australia and have confirmed that the company’s action has substantially constituted termination.”
The sending of this e-mail is action taken to dispute the proposed cessation of employment. It should be noted Anker denies there has been a dismissal in this case.
Correspondence between Anker HR and Mr. Hu following the cessation of employment
Mr. Hu in his submission states:
“Five HR representatives handled final matters with me. I originally thought I had already compromised enough and that once all payments were made it would be over. To my great surprise I was deducted 10 days annual leave, the pending reimbursements I submitted was not paid, my personal belongings where cleared without my permission on the day.”
All the documents before me in relation to interactions between human resource personnel of Anker and Mr. Hu following the cessation of his employment related to contested entitlements.[36]
Consideration
The 19 February 2024 e-mail plainly contested the proposed ending of his employment. Mr. Hu refuted that Anker had the “unilateral right to terminate his employment, and argued that “the unilateral announcement of his resignation” amounted to a termination”.
Following the ending of his employment on 31 March 2024, he did not contest the ending of the employment. Rather, Mr. Hu sought to clarify and dispute entitlements and reimbursements he should have been paid. I accept the submission of Anker that a “dispute regarding entitlements is separate and distinct from a dispute regarding an employee’s dismissal for the purposes of s 366(2)(b)”.[37]
This factor counts in favour of an extension of time. It should be noted however, that after his employment ceased he did not contest his dismissal but his entitlements. In those circumstances, this factor is not a strong one in favour of an extension of time.
PREJUDICE TO THE EMPLOYER
Anker concedes “there is no specific prejudice” to it caused by an extension of time. This factor is neutral to a finding of exceptional circumstances.
MERITS OF THE APPLICATION
Mr. Hu made the following submissions on the merits of the application:
“The application holds substantial merit. The employee was dismissed under dubious circumstances despite a proven track record of high performance. The employer's threats and retaliatory actions further underscore the unjust nature of the dismissal. The refusal to pay earned bonuses and the unfair deductions from annual leave are clear violations of employment laws and fair labor practices. The employee's claim for wrongful termination, compensation for unpaid bonuses, and other related damages is well-founded. The employer's behavior not only breaches contract terms but also potentially violates Australian employment law, including protections against unfair dismissal and workplace bullying.”
Anker submits Mr. Hu’s submissions “are irrelevant to a general protections application” and “otherwise do not articulate the basis on which it is claimed that Anker “has breached the general protections”. Anker therefore argues “the Commission cannot find that the merits of the case supports a finding of exceptional circumstances”.
Anker relies on Ukovich v Flight Plan Digital Pty Ltd[38] where Deputy President Saunders found that the applicant's failure to identify the basis on which she sought to invoke the general protections jurisdiction (in circumstances where she alleged generally that she had been treated unfairly) weighed against a finding that 'exceptional circumstances' existed because the merits of the application were weak. The Respondent submits that the circumstances in this case are similar to those in Ukovich.
The evidence presented in this case can be distinguished from the circumstances in Ukovich. In this case, I heard sworn evidence from Mr. Hu as well as from Mr. Zhou of Anker. That evidence revealed a significant conflict between the parties as to what transpired at two pivotal meetings which could be relevant to whether adverse action was taken against Mr. Hu for a prohibited reason.
5 February 2024 meeting between the General Manager and Mr. Hu
One of the events in dispute is the circumstances in which Mr. Hu sent his e-mail resignation. Mr. Hu claims that this e-mail was “co-erced, deceived, and forced on the General Manager’s instructions”.
“Initially, the GM announced my dismissal through a face-to-face meeting. When I asked for the reason, he explained that it was due to "not meeting the company's needs." So I questioned him about which aspects I did not meet, and he told me it was related to my business capabilities. I then pressed further for specific examples (I had been with the company for over two years, never had any cases of underperformance, and always exceeded my KPis). He had no response and then told me it was the company's decision and hoped I wouldn't hold it against him personally.
I then inquired about the details of my final salary and benefits and was informed that the company decided not to pay the performance bonus for the quarter, citing the reason that I had not stayed for the "entire quarter" (at that time, my KPI completion rate was already 108%). I found this unreasonable and raised an objection. He then suggested that I should simply resign myself and set the resignation date for the end of March, so I could receive the first-quarter bonus and still have more time to achieve a higher completion rate. He also promised that all my due salary and benefits would be properly paid, with HR handling the follow-up. So, after the communication meeting that day, I sent the "resignation letter" you saw”.[39]
Mr. Hu, in his oral evidence, elaborated further. He raised new facts of which Anker had no notice. He confirmed his submissions that “the general manager was standing at his side and asked Mr. Hu to send the letter to resign, and he gave me the reason that the company actually, this is the companies decision so he asked me not to hold a grudge on him”[40]. He went on:[41]
“So what happened was at around 9AM [the General Manager] asked me to go into the meeting room and talk about this issue. He told me that this is the company’s decision, and he said if I can write the resignation letter I can get more entitlements on bonus. Then that – then I started drafting the letter, he was standing just by And in his – his suggestion actually was the same as stated in my statement.,. So he told me if I didn’t resign I wouldn’t get any entitlements but if I did so he could help me to try and get – try to get more entitlement. So he put that I could get it done before Chinese New Year and that will allow him more responding time. That actually explains why around 9 o’clock in the morning. I rushed to sent that resignation letter”.
Anker did not call the General Manager and had no notice of some of the matters which Mr. Hu raised in his oral evidence.
Anker also made oral submissions on circumstances where a threat of dismissal are made which leads to a negotiated settlement relying on a passage from a New South Wales Industrial Commission case Allison v Bega Valley Council in order to frame the evidence of Mr. Hu on the discussion he had with the General Manager regarding performance.[42]
The 6 February meeting between Zhou and Hu
Mr. Hu’s evidence was that he was threatened with dismissal at this meeting. The e-mail sent by Mr. Hu to Mr. Zhou the day after the meeting gives his version of what occurred:[43]
“You made it clear in our morning meeting today that if the employee rejects the company’s “plan” the company will still force the employee to leave by terminating their service contract even if the company is aware and agree to the employee’s resignation. You also warned me that you would e-mail to “terminate” instead of “accept resign” which I felt was severely threatened and upset about the solution and statement you made during the conversation as a representation of the company that I have devoted more than two years of my life to.”
The witness statement of Mr. Zhou which was received into evidence is opaque on this meeting:
“On 6 February 2024 I attended a meeting with the Applicant which I proposed for his consideration alternative arrangements for the Applicant to cease employment. That proposal was not accepted by the Applicant.”[44]
Mr. Zhou’s oral evidence on the meeting is encapsulated in three statements:
Mr. Zhou
I cannot give a lot of details because, as you know it was five months ago. That’s at the very beginning of February, when I said that its almost the end of July so do not recall.[45]
Mr. Zhou
I cannot actually provide you with some just general idea about what happened. I can’t give you any word-to-word information because I can’t remember [46]
Mr. Zhou
Yes. I want to emphasise one thing, is after this, so I proposed that setting the last day as 21 February and then if you add to that and as a company we can offer like above - more bonus and then regarding to words we said about threatening, I don't think that's the fact. I did say something like, 'Accept the agreement is before you', so he - generally if you accept to this agreement you will get more money but rather than setting a last day at - how do you say, the last day of March. So if you are not accept we will, after this meeting we will think about what we're going to do. We may try a different way to find a settlement. Did that make sense?[47]
In response to that narrative of the meeting, Mr. Hu stated “Mr. Zhou is full of lies because I have a complete recording, an oral recording as my evidence”.[48] It should be noted that the recording was not filed by Mr. Hu.
Consideration
When considering the merits for the purposes of an extension of time it is not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking into account of the matter in s 366(2)(d).[49] The contested and partial nature of the evidence of what transpired at these meetings make it difficult to make an assessment of the merits In the absence of a full hearing where all the evidence is before the decision maker and it can be tested, it is not possible to make an assessment. It follows that merits are a neutral factor for the purposes of assessing whether I should extend time.
FAIRNESS BETWEEN PERSONS
Mr. Hu’s submissions on this factor include “Fairness dictates that the employee should be treated equitably and in accordance with the law. No employee should face termination without valid cause, especially when their performance has been exemplary. The threats and retaliatory actions by the employer create a toxic precedent that could affect other employees in similar positions”.[50]
Anker submits: “There was nothing remarkable or unusual about the Applicant's circumstances and it would be unfair to others if the Applicant's circumstances were to be held to be somehow exceptional and as justifying a departure from the rule that a dismissed employee must file their application within 21 days”.[51]
On the basis of these submissions and the evidence in this matter I find this is a neutral factor for the purposes of extending time.
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES?
· Reasons for Delay: Mr. Hu gives three reasons for the delay in making his application: his mental health issues, the conduct of staff of Anker and economic pressure. I do not consider any of these reasons reach the level of exceptional circumstances. Therefore, this factor counts against of an extension of time under s 366(2)(a).
· Action taken to dispute the dismissal: During his employment, Mr. Hu contested the manner proposed for the cessation of his employment by e-mail. However, after the cessation of his employment he only raised disputes concerning his entitlements. On that basis I find this factor counts in favour of an extension of time, but not strongly under 366(2)(b).
· Prejudice to the employer: Anker conceded that it suffered no prejudice because of the delay. This is a neutral consideration as to whether an extension of time should be granted under s 366(2)(c).
· Merits: The extent of the disputed evidence in the hearing prevents me from making a merits assessment in this case. It follows the merits of the application are a neutral consideration as to whether an extension of time should be granted under s 366(2)(d).
· Fairness between persons: Fairness arising between Mr. Hu and other persons in a similar position under s 366(2)(e) is a neutral factor.
I therefore conclude:
· the reasons for the delay under s 366(2)(a) counts against an extension of time.
· Mr. Hu took action to dispute the proposal for the cessation of his employment before his employment ended but only took action to dispute his entitlements after his dismissal. This counts in favour of an extension of time but not strongly under s 366(2)(b)
· The following factors are neutral:
o Prejudice to the employer under s 366(2)(c);
o The merits of the application under s 366(2)(d); and
o Fairness as between Mr. Hu and other persons in similar position under s 366(2)(e).
Only one factor counts in favour of an extension of time being granted. One factor counts against an extension of time being granted and three are neutral. Therefore, on balance, taking into account all the factors under s 366, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[52]
As I have decided not to extend time for the making of this application it is unnecessary for me to decide the no dismissal objection.
COMMISSIONER
Appearances:
Mr. Steven Wenpei Hu¸ the Applicant, for himself
Ms. Jane Delahey of Lander & Rogers on behalf of the Respondent
Hearing details:
24 July 2024
Melbourne
[1] [2022] FWCFB 234.
[2] Ibid at [17].
[3] DCB at 427.
[4] DCB at 433.
[5] DCB at 35.
[6] Ibid.
[7] DCB at 32.
[8] DCB at 23.
[9] DCB at 18.
[10] DCB at 19.
[11] DCB at 117.
[12] DCB at 118.
[13] DCB at 32.
[14] DCB at 35.
[15] DCB at 30 and 31.
[16] DCB at 123.
[17] DCB at 32.
[18] DCB at 109, paragraph 17.
[19] Ibid, paragraph 13.
[20] Ibid, paragraph 12.
[21] [2020] FWC 6930.
[22] Ibid, 18.
[23] DCB at 109.
[24] DCB at 110.
[25] Lawford v. Sydney Essential Oil Co Pty Ltd[2012] FWA 1718.
[26] DCB at 32
[27] DCB at 32
[28] ibid
[29] ibid
[30] DCB at 87-88
[31] DCB at 89
[32] DCB at 93-94
[33] The terms of the contract of employment of Mr. Hu dated 4 January 2024, which is evidence, prescribes in clause 23(d) “14 days notice”
[34] DCB at 101
[35] DCB at 111 at paragraph 19
[36] Some of which are listed at paragraph 18
[37] DCB at 110 numbered paragraph 20. Anker relies on the decision of Deegan C in Schodde v.Payless Shoes Pty Ltd at paragraph [15]
[38] [2024] FWC 140, [17].
[39] DCB at 32.
[40] DCB at 27.
[41] PN251.
[42] PN557 to PN573.
[43] DCB at 95.
[44] DCB at 73 at paragraph 10.
[45] PN167.
[46] PN174.
[47] PN324.
[48] PN126.
[49] Nulty v. Blue Star Groupd Pty Ltd[2011] FWAFB 975, [36].
[50] DCB at 33.
[51] DCB at 111 at paragraph 26.
[52] PR780299.
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