Szu-Chi Lu v Taipei Economic and Cultural Office, Sydney, Australia

[2017] FWC 4452

[2017] FWC 4452

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Szu-Chi Lu
v
Taipei Economic and Cultural Office, Sydney, Australia
(U2017/4830)

DEPUTY PRESIDENT DEAN SYDNEY, 14 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] Ms Lu commenced employment with the Taipei Economic and Cultural Office, Sydney, Australia (the Respondent) on 11 March 1999.

[2] On 4 May 2017 Ms Lu lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she had been unfairly dismissed by the Respondent. The Respondent sent Ms Lu a letter of termination by post and email on 29 March 2017. Ms Lu stated that she received the letter of termination via email on 3 April 2017 and the copy of the letter by post on 4 May 2017.

[3] The matter was listed for hearing on 28 August 2017 to determine whether the application was lodged within the statutory time limit and, if not, whether an extension of time should be granted pursuant to s.394(3) of the Act. At the hearing, Mr A. Yao, solicitor, appeared on behalf of Ms Lu and Mr F. Goh, solicitor, appeared on behalf of the Respondent, having both been granted permission to do so.

[4] It is well established that a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. 1 In Ayub v NSW Trains2, the Full Bench said:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. [(1986) 60 ALJR 78] Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. [(1984) 5 FCR 447] The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd [(2010) 201 IR 64] as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).” 3

[5] As it is accepted by the Respondent that Ms Lu did not receive the notice of termination until 3 April 2017 I find that the termination took effect on that date. Ms Lu’s application was filed on 4 May 2017, 10 days outside the 21 day period prescribed by s.394(2) of the Act. It is therefore necessary for me to determine whether Ms Lu should be granted an extension of time.

Extension of time

[6] Section 394(3) of the Act provides:

(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] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Ms Lu.

[8] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 4 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.”

[9] I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

[10] Ms Lu states that she was overseas with limited access to the internet and little contact with people in Australia when she received notification of the termination. She states that she returned to Australia on 1 May 2017. Her application was made on 4 May 2017. Ms Lu submitted a letter from her treating psychiatrist which stated that the termination from her employment had caused Ms Lu significant distress. Her psychiatrist noted that Ms Lu may have had difficulty filing her application within the prescribed timeframe due to the fact that she was overseas with limited access to the internet.

[11] The Respondent submits that Ms Lu’s circumstances are not unusual, special or uncommon. It submits that Ms Lu was in India from 18 March to 16 April 2017 and then in Taiwan 16 April to 30 May 2017 (which was not disputed by Ms Lu) and that she would have been able to access telephone and internet services in Taiwan with little difficulty. Ms Lu accepted in cross examination that Taiwan had good internet services.

[12] The Respondent further submits that the letter from the psychiatrist is vague and that the psychiatrist is not in a position to make judgements on the availability of internet abroad.

[13] In considering whether the reason for the delay amounts to exceptional circumstances, I must be satisfied that there is a credible reason for the whole period of the delay 5. That consideration 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 a delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances6. In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic7, the Full Bench explained the correct approach by reference to the following example:

“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.”

[14] I accept that Ms Lu may have experienced some difficulty accessing the internet. She did however indicate that she received a copy of the notice of termination via email on 3 April 2017. I do not consider that limited access to the internet while overseas adequately explains the whole period of the delay, and as a result I do not consider that it constitutes an exceptional circumstance.

[15] Whilst sympathetic to Ms Lu’s distress over the termination of her employment, it is not uncommon for a person who has been dismissed from their employment to experience distress.

[16] Having considered all of the evidence and submissions of Ms Lu, I find that the matters addressed by her cannot be considered ‘exceptional’. This weighs against the granting of an extension of time.

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

[17] Ms Lu became aware of the termination of her employment on 3 April 2017. Whilst the notice of termination stated that the termination took effect on 29 March 20017, I have found that the termination did not take effect until Ms Lu received the notice of termination by email on 3 April 2017. This is still outside of the timeframe required by the Act, and weighs against granting an extension of time.

Any action taken by the person to dispute the dismissal

[18] Ms Lu submits that she made attempts to schedule appointments with the Director-General to discuss the termination which were unsuccessful in that she did not receive a reply or she was told the Director-General was not able to meet with her until the end of May.

[19] I find this weighs in favour of the granting of an extension of time.

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

[20] The Respondent submits that it would suffer prejudice should an extension of time be granted to Ms Lu on the basis that Ms Lu booked her holiday on 16 January 2017 but only requested leave on 2 March 2017 without providing supporting documents or reasons. It submits that there is no justifiable reason for the delay in Ms Lu lodging her application.

[21] I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

[22] For the purpose of determining whether to grant an extension of time for Ms Lu to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.’⁸

[23] Ms Lu applied for annual leave for the period 20 March 2017 to 1 May 2017, a total of 27.5 days. The Respondent approved 7.5 days of annual leave to be taken by Ms Lu, however rejected her application for a further 20 days of leave as she did not have sufficient annual leave available. Ms Lu commenced her leave and did not return to work after the expiration of the period of approved leave.

[24] On the material before me, I am unable to make a final determination of the merits in this matter. However, my view based on the material before me is that Ms Lu does not have a strong case. I consider that this weighs against a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position

[25] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 9 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.’10

[26] I do not consider that there are other relevant persons in a similar position to Ms Lu, and I therefore find it to be a neutral consideration.

Conclusion

[27] Having considered all of the matters to which my attention is directed by the Act, together with submissions from the parties, I find that there are no exceptional circumstances which would warrant granting an exception to the statutory time limit. The circumstances of Ms Lu are not out of the ordinary course, unusual, special or uncommon. Accordingly, the application is dismissed.

[28] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

A. Yau, solictor for Ms Lu.

F. Goh, solicitor for Taipei Economic and Cultural Office, Sydney, Australia.

Hearing details:

2017.

Sydney.

August, 28.

 1   Burns v Aboriginal Legal Service of Western Australia Inc (2000) T3496.

 2   [2016] FWCFB 5500.

 3   Ibid at para 17.

 4   [2011] FWAFB 975.

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

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].

 7   [2016] FWCFB 349 at [31].

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

 9   [2015] FWC 8885.

 10 Ibid at [29].

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