Xuanqian Wang v Aproperty Real Estate Pty Ltd

[2025] FWC 275

[2025] FWC 275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Xuanqian Wang
v

Aproperty Real Estate Pty Ltd

(U2024/14951)

DEPUTY PRESIDENT COLMAN MELBOURNE, 31 JANUARY 2025

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

1. Xuanqian Wang (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires such 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 applicant submits that her employment with Aproperty Real Estate Pty Ltd (respondent) ended on 7 June 2024, when she was forced resign as a result of stress and overwork. The respondent says that the applicant resigned freely. I proceed on the basis that if the applicant was forced to resign and was therefore dismissed (see s 386(1)(b)), the dismissal occurred on 7 June 2024. The 21-day period therefore ended on 28 June 2024. The application was lodged on 12 December 2024. In order 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).

1. As to the reason for delay (s 394(3)(a)), the applicant said she was entitled to commissions on the sale of properties, payable on settlement. When she resigned, the respondent told her that it would pay her commissions on time, but from 16 October 2024 it ceased paying the commissions that were due to her. She approached consumer affairs, who suggested that she file an unfair dismissal claim, and she did so. Ms Wang said that she was not aware of the requirement to file her application within 21 days of dismissal. In my view the applicant does not have a good explanation for the delay in filing her application. If the applicant believed that she had been forced to resign and was unfairly dismissed, she could have lodged her application within 21 days. Her dispute with the respondent about unpaid commissions arose later. It was not a reason for the delay in filing an unfair dismissal claim. Further, unawareness of the 21-day filing requirement is not a good reason for delay. There is ample information on the Fair Work Commission’s website about the requirements for lodging an unfair dismissal application. The reasons for the delay weighs against an extension of time.

1. As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following. First, the applicant does not contend that she became aware of the dismissal after it took effect (s 394(3)(b)). Secondly, it does not appear that she took other action to dispute her dismissal (s 394(3)(c)). To the extent that the applicant’s complaint to consumer affairs constituted such action, I accord it little weight. There is no prejudice to the employer (s 394(3)(d)). 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 (s 394(3)(f)). I consider these matters to be neutral factors.

1. As to the merits of the application (s 394(3)(e)), the applicant contends that she was forced to resign, and that the respondent’s delay in paying her commissions was unjustified. The respondent submits that the applicant freely resigned in a text message on 25 May 2024 and served out her notice period until 7 June 2024. It said that the parties had a good working relationship, that the company was appreciative of the applicant’s contributions, and that it wished her well. In my view, the merits of this unfair dismissal application are weak. The applicant’s central complaint appears to be that she has a contractual entitlement to commission payments. But this is not a matter that the Commission has power to determine. If Ms Wang contends that the respondent owes her commission payments under her contract of employment, she can lodge an application in an eligible court. However, the merits of Ms Wang’s unfair dismissal application weigh against an extension of time.

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 exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

X. Wang for herself
A. Cao for the respondent

Hearing details:

2025
Melbourne (by telephone)
31 January

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