Tu, Minh (Alex) v Aurora Australis Holdings Pty Ltd T/A Canterbury Windows & Doors

[2021] FWC 3710

[2021] FWC 3710

FAIR WORK COMMISSION

DECISION

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

Tu, Minh (Alex)
v
Aurora Australis Holdings Pty Ltd T/A Canterbury Windows & Doors
(U2021/4521)

COMMISSIONER MCKINNON MELBOURNE, 28 JUNE 2021

Application for an unfair dismissal remedy – effective date of dismissal – extension of time.

Introduction

[1] Minh Tu (who goes by the name Alex) was a store worker employed by Aurora Australis Holdings Pty Ltd (which trades as Canterbury Windows & Doors). He was employed from 17 October 2018 until he was dismissed on 27 April 2021.

[2] On 25 May 2021, Mr Tu applied for an unfair dismissal remedy. This was 7 days after the expiry of the 21-day period allowed for unfair dismissal remedy applications to be made. 1

[3] The question is whether additional time should be allowed for Mr Tu to make his application to the Commission.

Extension of time

[4] Additional time can be allowed under section 394(3) of the Fair Work Act 2009 (Cth) (Act) if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”. 2 In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

•  the reason for the delay,

•  whether the person first became aware of the dismissal after it had taken effect,

•  any action taken by the person to dispute the dismissal,

•  prejudice to the employer (including prejudice caused by the delay),

•  the merits of the application, and

•  fairness as between the person and other persons in a similar position.

Relevant factors

[5] Reason for delay: Mr Tu says he did not receive his letter of termination in the mail until 12 May 2021, more than two weeks after dismissal. After reading the letter, Mr Tu felt he had been unfairly treated. He discussed the matter with his friends and family and showed them the letter. He then decided to lodge an unfair dismissal claim. He did not know there was a 21-day application period. Mr Tu filled in his application on 22 May 2021 and tried to lodge it online. Something went wrong and the application was not completed. After Mr Tu sought advice from the Commission on 24 May 2021, the application was made by email on 25 May 2021. In the interim, Mr Tu was occupied with finding other work: updating his resume, registering with job agencies, attending interviews, and searching for jobs online. He picked up some odd jobs during the day as well as occasional night work in the hospitality industry.

[6] I am not satisfied that any of these matters are exceptional circumstances. Not knowing about the 21 day time limit, seeking counsel from friends and family, seeking other work and working are ordinary features of a persons’ experience after dismissal. While Mr Tu’s letter of termination was not received until two weeks after dismissal, its contents were consistent with the reasons for termination orally advised to him at the time. A dismissal can occur with or without a letter of termination and occurs when the fact of dismissal is clearly communicated to the employee, as was the case here. In appropriate cases, technical difficulties with the Commission’s website that cause or contribute to a delay in filing might amount to exceptional circumstances, but not in this case. By the time Mr Tu tried to apply to the Commission, his application was already four days late.

[7] Whether the person first became aware of the dismissal after it had taken effect: On 27 April 2021, Mr Tu was asked to attend a meeting with the company’s Finance Accountant, Gajen Muruga, and its Finance Manager, Chanika Karisyawasam. During the meeting, Ms Karisyawasam told him that because of bad results from the recent stocktake, his employment was terminated “today”. Mr Tu was asked to pack his belongings and escorted to his car. Mr Tu then left the premises.

[8] Subsequent correspondence between Mr Tu and the company’s Human Resources Manager, Michele Burton, over the period from 28 April 2021 to 7 May 2021, confirms that Mr Tu knew he had been dismissed on 27 April 2021. The correspondence deals with finalising Mr Tu’s “last payment” and errors in the calculation of his annual leave and notice of termination entitlements. Mr Tu expresses his gratitude for having worked with Ms Burton, Ms Kariyawasam and Mr Muruga in “past years”. While the letter of termination was not received until mid-May 2021, the letter confirmed what Mr Tu already knew. These are not exceptional circumstances. I find that Mr Tu was aware of the dismissal on the day, and at the time, that it took effect on 27 April 2021.

[9] Any action taken by the person to dispute the dismissal: Mr Tu did not take any action to dispute his dismissal until 22 May 2021 when he first filled in his application to the Commission and tried to lodge it online.

[10] Prejudice to the employer (including prejudice caused by the delay): There is no evidence of any prejudice to Canterbury Windows & Doors if additional time is allowed to Mr Tu to bring his claim.

[11] Merits of the application: The dismissal appears to have been founded upon performance concerns, and in particular a recent poor stocktake outcome. There is evidence of prior counselling and various emails about the general work ethic and stocktaking practices of the area where Mr Tu worked. Whether these are specific to Mr Tu’s employment is in dispute. Mr Tu says he was a scapegoat for the conduct of others. He alleges discrimination between union and non-union employees in the workplace and Canterbury Windows & Doors denies it. Each party’s case is at least arguable. Mr Tu’s case has not yet been heard, nor relevant evidence tested. The merits are a neutral consideration at this stage.

[12] Fairness as between the person and other persons in a similar position: Mr Tu says he was treated less favourably than Adel Michaels, another store worker who worked closely with Mr Tu and contributed to the poor stocktake outcome. The case is at least arguable because Mr Tu was dismissed and Mr Michaels was not, although there is a dispute about whether the two were in a similar position given their allegedly different work responsibilities.

Conclusion

[13] In summary, Mr Tu knew of, but did not dispute, his dismissal until after the statutory timeframe had expired. His reasons for delay, including late receipt of the letter of termination, efforts to find other work and ignorance of the law, are not exceptional. It is not possible to assess the merits of the case in favour of one party over the other at this stage. The issues of fairness and discrimination as between Mr Tu and Mr Michaels are serious but mere allegations. On balance, I am not satisfied that there are exceptional circumstances in this case.

[14] As discussed above, I can only allow additional time for Mr Tu to make his application if there are exceptional circumstances. As there are none, no additional time can be allowed. This means that Mr Tu is not entitled to apply for an unfair dismissal remedy.

[15] The application is dismissed.

COMMISSIONER

Appearances:

M Tu on his own behalf.
M Burton for the Respondent.

Hearing details:

2021.
Melbourne:
June 23.

Printed by authority of the Commonwealth Government Printer

<PR731104>

 1   Fair Work Act 2009 (Cth), s 394(2).

 2   Nulty v Blue Star Group (2011) 203 IR 1 at [13].