DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Xiximei Wu
v
AAA Fresh Pty Ltd
(U2021/5835)

COMMISSIONER P RYAN

SYDNEY, 19 AUGUST 2021

Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.

Introduction

[1] This decision concerns an application by Ms Xiximei Wu (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant’s employment with AAA Fresh Pty Ltd (Respondent) was terminated with effect from 25 May 2021. The unfair dismissal application was lodged on 2 July 2021.

[3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 15 June 2021. The application was therefore filed 17 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the Applicant’s application for an extension of time.

[5] The matter was heard as a determinative conference via Microsoft Teams Video on 10 August 2021. The Applicant represented herself and was assisted by a support person, Mr Yuanhong Fang. The Respondent was represented by one of its directors, Mr David Vincent.

[6] The Commission was assisted by a mandarin interpreter, as well as Mr Fang who assisted at times with translation from the Applicant’s dialect into mandarin.

[7] For the reasons that follow, I decline to grant an extension of time under s.394(3).

Exceptional Circumstances

[8] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may 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 can be considered exceptional.2

[9] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.

[10] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

“394 Application for unfair dismissal remedy

(3) The FWC may allow a…

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.

Continue reading Xiximei Wu v AAA Fresh Pty Ltd

Details

AGLC: Xiximei Wu v AAA Fresh Pty Ltd [2021] FWC 5144
Case: [2021] FWC 5144
Decision Date: 19 AUGUST 2021

CaseChat Overview and Summary

The applicant, Xiximei Wu, filed an application for unfair dismissal against her former employer, AAA Fresh Pty Ltd, in the Fair Work Commission. The primary dispute centred around the dismissal of Ms Wu from her employment and the associated claims of unfair dismissal. The Commission was tasked with determining whether the application, filed beyond the statutory time limit, could be accepted under exceptional circumstances as permitted by section 524 of the Fair Work Act 2009. The respondent, AAA Fresh Pty Ltd, argued that the application was time-barred and did not meet the criteria for an extension under the Act.

The central legal issue was whether the exceptional circumstances exception applied to permit the late filing of the unfair dismissal application. The Commission examined the criteria for exceptional circumstances, which require a demonstration of exceptional circumstances that prevented the timely lodgement of the application. The Court considered Ms Wu’s explanation for the delay, her efforts to rectify the situation, and whether the delay had caused any prejudice to the respondent. The Court also assessed whether the delay was due to any action or inaction on the part of the Commission or its staff.

In delivering its decision, the Commission found that while Ms Wu had provided an explanation for the delay, it did not amount to exceptional circumstances as defined by the legislation. The Commission held that the delay was not due to any fault of the Commission or its officers and that there was no evidence of any action or inaction by the Commission that would justify an extension. Furthermore, the delay did not prejudice the respondent, as the respondent was able to effectively respond to the application. Consequently, the application was dismissed on the grounds that the exceptional circumstances exception did not apply. As a result of the dismissal, the applicant’s unfair dismissal application was not proceeded with.

Orders