Xiao Zhou v Ezyrol Trading Pty Ltd T/A Ezyrol Trading

[2019] FWC 4044

[2019] FWC 4044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Xiao Zhou
v
Ezyrol Trading Pty Ltd T/A Ezyrol Trading
(C2019/1289)

COMMISSIONER YILMAZ MELBOURNE, 13 JUNE 2019

Application to deal with a general protections dispute involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

Introduction and background

[1] On 27 February 2019, Mr Xiao Zhou (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act). The Applicant was employed by Ezyrol Trading Pty Ltd T/A Ezyrol Trading (the Respondent) for a period of four days.

[2] In his Form F8, the Applicant claims he commenced employment on 5 November 2018 and was put to work with G & K O’Connor Pty Ltd (G & K O’Connor), a company engaged in the exportation of beef products, however was subsequently terminated on 8 November 2018. In his application he states that the reason provided to him for the termination was because he “insulted the boss’s daughter” 1.

[3] As the dismissal took effect on 8 November 2018, an application pursuant to s.365 of the Act should have been lodged no later than 29 November 2018. The Application was made 90 days after the 21 day time limit.

[4] The Applicant alleges breaches of s.344 undue influence or pressure, and s.351 discrimination on the basis that he is Chinese. The Applicant did not articulate the basis for alleging a breach of s.344, although, in terms of s.351 he claims that the Respondent placed him in a dormitory with Taiwanese workers and the boss’s daughter (the boss is Chinese but married to a person who is Taiwanese) refused to accept his bank account and tax file numbers.

[5] On 15 May 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. The Applicant provided limited written material in support of his application prior to the hearing, and no information was filed by the Respondent.

[6] Despite numerous attempts to contact the Respondent, the Commission received no verbal or written response and no submissions were received.

[7] The Applicant attended the hearing via telephone from China and was heard through an interpreter. The Respondent did not attend the extension of time hearing.

[8] General protection applications involving dismissal must be made within 21 days. However, s.366(2) permits the Commission to consider an extension to the period for filing an application, if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[9] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[10] The Applicant submits in his Form F8 that the delay in filing his claim is because he was “homeless”  2. During the hearing he explained that on his fourth day of employment, after he had a heated argument with the boss’s daughter, he was informed that he was dismissed and ordered back to the dormitory. He submits he left the dormitory after he received an anonymous phone call that the boss was on his way with “gangsters”3 to murder him.4 The Applicant did not elaborate where he went, other than stating that he returned to China in January 2019. Even though the Applicant asserts that he was homeless, he had a workable mobile phone, access to email and subsequently returned to China.

[11] During the hearing, the Applicant submitted that despite his homelessness, the primary reason for the delay was that “he wanted to sue O’Connor first” 5, because he assessed his chances of obtaining financial compensation was greater than pursuing the Respondent. The Applicant did not provide further particulars to explain who O’Connor was in his written or oral submissions, nor did he explain the nature of the legal action taken, although he submits in his Form F8 that the dispute with “O’Connor" was finalised and a settlement document had been signed.6

[12] The Commission’s records show that the Applicant filed a s.365 application against G & K O’Connor on 29 November 2018. The allegation in that matter was that his employment was terminated in contravention of a general protection. Similarly to the matter before me, the Applicant contended that his difficulties arose because he was Chinese and the “owner” had Taiwanese family and worker connections. The G & K O’Connor application involved an allegation that Taiwanese workers harassed him, and that he was prevented from performing his duties.

[13] On learning of the Commission’s file regarding the s.365 application against G & K O’Connor during the hearing, the Applicant was questioned about that application. The Applicant disclosed that he had made the application, and that he attempted to join Ezyrol Trading with G & K O’Connor as joint respondents.

[14] This matter before me and the matter against G & K O’Connor relate to the same period of employment. The Applicant described Ezyrol Trading as an agent that placed him to work with G & K O’Connor. The Commission’s records also reveal that the Applicant filed an unfair dismissal application against an entirely different employer in October 2018.

[15] During proceedings it was difficult to establish who the Applicant’s employer was. Statements made by the Applicant were inconsistent with written material and his submissions were lacking in detail.

[16] The Applicant admits that the matter filed against G & K O’Connor had been settled with payment of compensation, and the Commission’s records show that the claim was settled on 15 February 2019.

[17] Based on the evidence of the claims and applications made by the Applicant in this Commission, it is evident that the Applicant was familiar with the application process. While it could not be confirmed, it is probable that the Applicant could not make multiple applications in relation to the same matter. When questioned during the hearing about his other application, he stated that despite his attempt to include the Respondent, the application only included G & K O’Connor in the application form. The Applicant provided no evidence to support this submission.

[18] Section 725 of the Act relevantly provides:

“725 General rule

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies” 7

[19] Section 727 of the Act provides:

“727 General protections FWC applications

(1) This section applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(1A) This section also applies if:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.” 8

[20] The Explanatory Memorandum to the Fair Work Bill 2008 provides that a reference to s.725 “is intended to prevent a person ‘double-dipping’ when they have multiple potential remedies relating to a dismissal from employment by seeking to limit a person to a single remedy.” 9

[21] Further, the application of s.725 was considered by a Full Bench of the Commission in the matter of Hazledine v Wakerly & Giddings 10 (Hazledine). This authority clarifies that the provision is intended to prevent double dipping. Should an extension of time be granted to the Applicant in this matter, the prospect of ‘double dipping’ for the same dismissal event is possible, even though the Commission would have no jurisdiction to conduct a conciliation by virtue of s.725.11 Citing Birch v Wesco Electrics,12 the Full Bench in Hazledine noted:

“The expression “must not make an application” in s.725 of the Act imposes a prohibition on an applicant making a general protections application if they have already made an application or complaint of a kind to which one of ss.726-732 of the Act apply. It follows that if an applicant is prohibited by s.725 from making a general protections application under s.365 of the Act, the Commission has no jurisdiction to conduct a conference in accordance with s.368 of the Act.” 13

[22] The Applicant filed the application before me 12 days after the settlement of the s.365 claim against G & K O’Connor.

[23] While the Applicant may have put forward an explanation for part of the delay (that he was homeless and first wanted to sue G & K O’Connor), the relevant consideration is that he already had a claim on foot, the homelessness did not inhibit him from filing a claim against G & K O’Connor, therefore should not under the circumstances, be a relevant and reasonable explanation contributing to an argument of exceptional circumstances. The Applicant took a further period of 12 days after settlement against G & K O’Connor to seek relief against the Respondent in relation to the same employment arrangement.

[24] In considering the reason for the delay I am required to consider all of the relevant matters, and while I may exercise discretion, the Applicant is required to meet a “high hurdle” 14 of “exceptional circumstances” to meet the test for an extension of time.15

[25] I am not persuaded that the Applicant has established exceptional circumstances for the delay against filing a claim against the Respondent. The Applicant provided no evidence to support any of his written or oral submissions. Although, it is evident that the Applicant returned to China and lodged a claim against G & K O’Connor. It is also apparent that the Applicant made a conscious decision not to pursue a claim against the Respondent in favour of pursuing G & K O’Connor for the reason that his success in obtaining a financial settlement had a greater chance of success. The submissions in my opinion weigh against the Applicant in respect to his reasons for the delay.

Steps taken to dispute the termination

[26] The Applicant argues he took steps to challenge his termination and this was evident in a claim for the same dismissal albeit against another party. He also submits that he is not really pressing the extension of time; rather the application was made to shed light on the Respondent as it is “escaping the law”. The submissions in respect to this consideration weigh against the Applicant.

Prejudice to the employer

[27] During proceedings I questioned the Applicant whether he knew if the Respondent was still in business. The Applicant responded that he was informed by G & K O’Connor during his conference in February that the Respondent was subject to bankruptcy. He also added that the Respondent appeared to still be trading based on Facebook activity.

[28] Evidence subsequent to the hearing reveals that in November 2018, the ATO successfully applied to the Federal Court for a provisional liquidator for eight labour hire businesses including the Respondent, Ezyrol Trading Pty Ltd. Consequently, any decision to extend the time for lodgement is unlikely to prejudice the Respondent; however, it may not benefit the Applicant either. In respect to this consideration the weight of submissions are neutral.

Merits of the application

[29] The Applicant in his submissions was scant in detail to support the merits of any contravention of ss.344 and 351 of the Act. In his application, he stated that his roommates were Taiwanese. He also states that he was subject to “petty demands” 16 and when he tried to submit his bank account details and tax file number to a female employee (the boss’s daughter) he alleges that he was abused by her in terms of, “You Chinese are fucking uneducated…only evil men could get stable jobs, and will get a longer life”17.

[30] The Applicant submits that he left the employ of the Respondent on day four after he received an anonymous tip off that gangsters were going to murder him. 18

[31] It appeared to me that the Applicant would have difficulty in establishing merit and successfully obtaining any relief in light of inconsistent submissions, no evidence to support his submissions and no forthcoming submissions from the Respondent. The matter before me consisted of the assertion that because he was Chinese and the other workers were Taiwanese as was the boss’s wife, he was discriminated against. Also relevant to the difficulty for the Applicant to establish a case is that he returned to China, the Respondent is presumed to be no longer trading, and the Applicant had already successfully obtained financial relief before this Commission for the same matter, albeit from another Respondent.

[32] Consequently on the submissions presented, the alleged contravention involving discrimination based on race may have limited prospect for success.

Fairness between the person and other persons in a like position

[33] The Applicant did not address the Commission in respect of this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[34] Based on the above considerations and the evidence presented, I have concluded that the Applicant has not substantiated exceptional circumstances warranting an extension of time for his application to deal with a contravention involving a dismissal. I order that the application is dismissed.

COMMISSIONER

Appearances:

X Zhou on his own behalf

Hearing details:

2019

Melbourne

15 May 2019 (via telephone)

Printed by authority of the Commonwealth Government Printer

<PR709236>

 1   Applicant’s Outline of Argument at question 1g.

 2   Applicant’s Form F8 at question 1.4.

 3   Ibid at question 3.1.

 4   Ibid.

 5   See also Applicant’s Form F8 at question 1.4.

 6   Ibid.

 7   Fair Work Act 2009 (Cth) s.725.

 8   Ibid s.727.

 9   Fair Work Bill 2008 Explanatory Memorandum at [2715].

 10   [2017] FWCFB 500.

 11 Ibid at [12].

 12   Birch v Wesco Electrics (1966) Pty Ltd [2012] FMCA 5; (2012) 218 IR 67 at [61].

 13   Hazledine v Wakerly & Giddings[2017] FWCFB 500.

 14   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21].

 15   Ibid.

 16   Applicant’s Form F8 at question 3.1.

 17   Ibid.

 18   Ibid.