DECISION

Fair Work Act 2009
s.365—General protections

Wei Han
v
St Basil’s Homes
(C2020/1747)

COMMISSIONER YILMAZ

MELBOURNE, 22 JULY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time granted.

[1] On 21 March 2020, Mrs Wei Han lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against St Basil’s Homes. Mrs Han commenced employment as a registered nurse on 11 August 2010 and her last day of work was on 23 January 2020.

[2] Mrs Han submits that she exercised her workplace rights by raising concerns about matters in the workplace culminating in a formal complaint in December 2019, but instead of those concerns being addressed, she was disciplined and ultimately dismissed.

[3] Mrs Han submits she complained to her General Manager on 1 and 15 December 2019 about being overworked on her shifts, lack of support from team members, favouritism and breaches of confidentiality. She submits her concerns were not addressed, instead she was called in to a meeting on 12 December 2019 and spoken to, and on 23 January 2020 her employment was terminated.

[4] Mrs Han submits that she lodged an unfair dismissal application within the 21-day timeframe, but it was discontinued after the conciliator advised her that she should have filed a general protections application. Mrs Han submits that she filed the general protections application without delay after the conciliation conference.

[5] The parties agreed to participate in a member assisted conciliation on my recommendation, however, due to failure to resolve, the matter proceeded to an extension of time hearing.

[6] I scheduled the extension of time hearing for 27 May 2020. At the hearing, Mrs Han was self-represented, and I granted legal representation for St Basil’s Homes.

[7] 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 application was lodged 37 days after the 21-day statutory time limit.

Applicant’s submissions

[8] Mrs Han submits that in her almost 10 years of service with St Basil’s Homes she has never had any issues with co-workers, management or consumers (residents) or their families. This all changed, Mrs Han says, in the last months of her employment when individuals were appointed based on family or friendship connections. In her submissions, she lists individual co-workers that are either related or on friendly terms who failed to work with her as a team, failed to provide support when she required it, and engaged in behaviour which she describes as bullying towards her. Mrs Han lists among the incidents, a situation where she and a team leader provided support to a resident and despite having consulted with the doctor and the resident’s family, she was verbally criticised by one of the named individuals. Mrs Han submits she complained to her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FWC 3861
Decision Date: 22 JULY 2020

CaseChat Overview and Summary

The case of Wei Han v St Basil's Homes concerned an application by the applicant, Wei Han, to address alleged contraventions under the Fair Work Act 2009 by the respondent, St Basil's Homes. The primary issue was whether the Fair Work Commission had jurisdiction to consider the application due to it being lodged outside the statutory 21-day period. Wei Han argued that exceptional circumstances justified an extension of the time limit. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether there were exceptional circumstances that warranted an extension of the time limit for lodging the application. St Basil's Homes contended that the application was untimely and, therefore, outside the Commission's jurisdiction. Wei Han, on the other hand, presented evidence and arguments to demonstrate that there were exceptional circumstances which had impeded the timely lodging of the application. The Commission had to assess the credibility and weight of the evidence provided by Wei Han to determine if an extension was warranted.

The Commission found that the evidence presented by Wei Han was sufficient to establish that exceptional circumstances had indeed prevented the timely lodging of the application. The Commission took into account the applicant's efforts to resolve the matter and the reasons for the delay, which included personal and health-related issues. The Commission concluded that the exceptional circumstances were sufficient to justify an extension of time and granted the application to proceed with the contraventions. Consequently, the application was accepted, and the matter was remitted to the Commission for further consideration.

The final orders of the Commission included the grant of an extension of time for the lodging of the application and the direction that the matter proceed to a hearing on the merits of the contraventions alleged.

Orders