Xi Qiao v VCT Refrigerated Transport Pty Ltd

[2024] FWC 2614

[2024] FWC 2614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Xi Qiao
v

VCT Refrigerated Transport Pty Ltd

(U2024/10210)

DEPUTY PRESIDENT COLMAN MELBOURNE, 23 SEPTEMBER 2024

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. Xi Qiao (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). The respondent is VCT Refrigerated Transport Pty Ltd. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The application states that the dismissal occurred on 14 May 2024. I will proceed on this basis. The 21-day period therefore ended on 4 June 2024. The application is dated 28 August 2024 and was lodged on 29 August 2024. For the application to proceed, the applicant requires an extension of time. The Commission may only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f) of the Act.

1. As to the reason for the delay (s 394(3)(a)), the applicant said that he never received a formal letter of dismissal. However, he does not contend that he was unaware of the dismissal until after it took effect. The absence of a termination letter is not a good reason for delay. The applicant also said that at the time of his dismissal, the respondent was seeking judicial review of a decision to refuse him a visa, and that he was concerned that if he lodged an unfair dismissal claim, the respondent would end its court proceeding. The applicant said that in mid-July, he learned that the company had discontinued the proceeding, and he decided to lodge an unfair dismissal claim. I do not consider this to be a good reason for the delay. Until mid-July, the applicant did not wish to make an unfair dismissal application for his own personal reasons. After mid-July, he took another 6 weeks to lodge an application. The applicant said that he was unaware of the 21-day lodgement requirement, but there is ample information available on the Commission’s website. The reasons for the delay weigh against an extension of time.

1. Sections 394(3)(b), (c), (d) and (f) are neutral matters. As noted above, the applicant did not contend that he became aware of his dismissal after it took effect. There is no indication that he took other action to dispute his dismissal. There is no prejudice to the employer. And in my view, there are no matters that are relevant to the question of fairness between the applicant and other people in a similar position.

1. As to the merits (s 394(3)(e)), the applicant submitted that the respondent had unfairly dismissed him by failing to give him any notice of termination and because it did not tell him why he was being dismissed. The respondent contended that the applicant was not dismissed at all, although it did not provide any details. Based on the information before the Commission, I consider that the application has a reasonable prima facie case, but I do not consider the merits to weigh in favour of an extension. Even if they did so, it would not affect my overall conclusion.

1. The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are such circumstances in this case. I reach this conclusion having adopted the broad approach to the meaning of ‘exceptional circumstances’ that is set out by the Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. As I am not satisfied that there are exceptional circumstances in this case, I have no power to extend time. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

X. Qiao for himself
R. Simms for the respondent

Hearing details:

2024
Melbourne (by telephone)
23 September

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