Yanqing Li v Ccig Investments Pty Ltd T/A Daydream Island Resort

Case •

[2024] FWC 799

•

28 MARCH 2024
[2024] FWC 799

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.365—General protections

Yanqing Li
v

CCIG Investments Pty Ltd T/A Daydream Island Resort

(C2024/481)

COMMISSIONER CRAWFORD

SYDNEY, 28 MARCH 2024

General protections dismissal dispute - application filed out of time – unfair dismissal application filed within time - extension granted

BACKGROUND

  1. Yanqing Li (Mrs Li) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Mrs Li’s allegations that she was dismissed from her employment with CCIG Investments Pty Ltd trading as Daydream Island Resort (CCIG) in contravention of Part 3-1 of the FW Act.

  1. Mrs Li commenced employment with CCIG on 21 September 2016 and was employed in the role of Assistant Executive Office Manager prior to being dismissed on the ground of redundancy on 13 October 2023.

  1. Mrs Li initially filed an unfair dismissal application on 2 November 2023, which was within 21 days of her dismissal taking effect. Mrs Li discontinued that application during a conference with Deputy President Lake on 11 January 2024. Mrs Li then filed her general protections application on 25 January 2024. 

  1. CCIG has objected to Mrs Li’s general protections application on the ground that the application is out of time.

  1. I issued directions for the filing of material in relation to whether I should grant an extension of time and listed the matter for hearing via video on 19 March 2024.

  1. Mrs Li represented herself at the hearing on 19 March 2024. CCIG was represented by Melissa Butters from the Queensland Hotels Association.

MATERIAL FILED

Mrs Li

  1. Mrs Li relied on the following material in support of the granting of an extension of time for the filing of her application:

·   Mrs Li’s Form F8 application dated 25 January 2024. The application includes evidence about Mrs Li’s dismissal and the reason for the late filing. I marked the application form Exhibit A1.

·   A copy of Mrs Li’s discontinued unfair dismissal application dated 2 November 2023. I marked the application form Exhibit A2.

·   An email from Mrs Li to the Commission dated 31 January 2024. The email contains evidence concerning the late filing. I marked the email Exhibit A3.

·   A mixture of evidence and submissions filed by Mrs Li on 1 March 2024. I marked the documents Exhibit A4.

·   A statement from Justin Shergold (Mrs Li’s husband) dated 29 February 2024. This contains evidence about a family dispute Mrs Li was involved in during January 2024 and contains some text messages between the couple which indicate Mrs Li was struggling mentally during this period. I marked Mr Shergold’s statement Exhibit A5.

  1. Mrs Li was cross-examined on her evidence by Ms Butters.

  1. Mrs Li also provided oral submissions and reply submissions at the end of the hearing.

CCIG

  1. CCIG relied on a statement from Julie Courtie (Director of People and Culture) dated 8 March 2024. Ms Courtie’s statement had the following documents attached:

·   Attachment A: An invitation to Mrs Li to attend a meeting regarding a restructuring process for CCIG on 25 August 2023.

·   Attachment B: An email from Mrs Li dated 3 October 2023 where she disclosed to CCIG that she was pregnant.

·   Attachment C: Mrs Li’s unfair dismissal application and service documentation provided by the Commission dated 15 November 2023.

·   Attachment D: CCIG’s Form F3 employer response for the unfair dismissal application.

·   Attachment E: A notice of listing for a preliminary conference with Deputy President Lake on 11 January 2024 via Teams.

·   Attachment F: An email from Deputy President Lake’s associate to the parties confirming Mrs Li had discontinued her unfair dismissal application.

·   Attachment G: An email from Ms Courtie to my chambers indicating she is the correct contact person for CCIG and had not been included in previous correspondence regarding the general protections application.

I marked Ms Courtie’s statement Exhibit R1.

  1. Ms Courtie was not cross-examined on her evidence.

  1. CCIG relied on written submissions dated 8 March 2024. Ms Butters also provided oral closing submissions at the end of the hearing.

CONSIDERATION

When must an application for the Commission to deal with a dismissal dispute be made?

  1. Section 366(1) of the FW Act provides that such an application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

  1. It is a matter of record that the application was made on 25 January 2024.

When did the dismissal take effect?

  1. It is not in dispute, and I find, that Mrs Li’s dismissal took effect on 13 October 2023.

Was the application made within 21 days after the dismissal took effect?

  1. As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

  1. As I found above, the dismissal took effect on 13 October 2023. The final day of the 21-day period was therefore 3 November 2023 and ended at midnight on that day. The application was made on 25 January 2024. The application was made 83 days late.

  1. The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Was the application made within such further period as the Commission allows?

  1. Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

(b)   any action taken by Mrs Li to dispute the dismissal; and

(c)   prejudice to the employer (including prejudice caused by the delay); and

(d)   the merits of the application; and

(e)   fairness as between Mrs Li and other persons in a similar position.

  1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

  1. I set out my consideration of each matter below.

Reason for the delay

  1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 November 2023. The delay is the period commencing immediately after that time until 25 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

  1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

  1. Mrs Li does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mrs Li has not provided any reason for any part of the delay.[5]

  1. Mrs Li’s explanation for the delay was the following:

1.For the period up until 11 January 2024, the reason for the delay was that Mrs Li was pursuing an unfair dismissal application rather than a general protections application.

2.The reason for the delay between 11 January 2024 and 25 January 2024 was primarily because Mrs Li did not understand that even though she had clearly missed the 21-day filing period, any further delay in filing the general protections application was likely to weigh against an extension of time being granted. Mrs Li also referred to travelling into remote China to visit a relative on 12 January 2024 and not taking her laptop. Mrs Li gave evidence she was struggling mentally at this time and the trip was intended to reduce her stress, which she considered to be the priority given she was pregnant. 

  1. CCIG did not make submissions arguing Mrs Li did not have a satisfactory explanation for the delay until 11 January 2024. CCIG focused on the further delay from 11 January 2024 to 25 January 2024 and argued that Mrs Li’s explanations for this further delay did not amount to exceptional circumstances.

  1. Mrs Li did not provide any medical evidence to demonstrate she was suffering from mental health issues during the period of 11 January 2025 to 25 January 2024. However, Mrs Li explained that it is not easy to access psychologists or doctors in the parts of China that she was staying in and that it is not customary in China to seek medical treatment for the issues she was experiencing.

  1. I find Mrs Li has a satisfactory explanation for the delay until 11 January 2024. I am satisfied that Mrs Li’s unfair dismissal application provides a satisfactory explanation, and I can understand why she initially pursued an application in that jurisdiction. I can also understand why she discontinued the unfair dismissal application to pursue a general protections application once she had a better understanding of the jurisdictions.

  1. I am not satisfied there is sufficient evidence to conclude that Mrs Li has a sufficient explanation for the delay from 11 January 2024 to 25 January 2024. However, I consider Mrs Li being self-represented and speaking English as a second language is likely to have contributed to the lack of evidence.

  1. Mrs Li presented as a credible witness. I accept her evidence that she was aware of the 21-day filing period but not aware that it is expected that applicants must file their application as urgently as possible if they have missed the deadline. However, it is well established that ignorance is not a satisfactory explanation for a delay in filing.

  1. Given I have found Mrs Li has a satisfactory explanation for the delay until 11 January 2024, but there is insufficient evidence to establish a satisfactory reason for the delay from 11 January 2024 to 25 January 2024, I have decided to treat this as a neutral factor.

What action was taken to dispute the dismissal?

  1. I consider Mrs Li’s action in filing an unfair dismissal application within 21 days of her dismissal taking effect weighs strongly in favour of granting an extension of time based on exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

  1. I do not consider CCIG will suffer any significant prejudice if an extension of time is granted for Mrs Li’s application. CCIG has been aware that Mrs Li was contesting her dismissal since Mrs Li’s unfair dismissal application was served by the Commission on 15 November 2023.

  1. The grounds relied upon in both applications are very similar. I don’t consider the pivot from the unfair dismissal jurisdiction to the general protections jurisdiction results in any substantive prejudice for CCIG. In either jurisdiction, CCIG will need to prove the redundancy was genuinely made due to operational change.

  2. I consider prejudice to CCIG to be a neutral factor. 

What are the merits of the application?

  1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[6]

  1. I consider Mrs Li may have a case if she can prove that either her relocation to Sydney for family reasons, or the prospect that she may soon fall pregnant, which eventuated prior to her dismissal, were a factor in the decision to make her position redundant. This is hotly contested by CCIG. Ms Butters highlighted that the initial restructuring letter was provided to Mrs Li on 25 August 2023. Mrs Li accepted she did not inform anyone at CCIG of her pregnancy until 3 October 2023. That timeline clearly helps CCIG’s case.  

  1. In all the circumstances, and particularly given the degree of factual dispute between the parties, I consider the merits to be a neutral factor.

Fairness as between Mrs Li and other persons in a similar position

  1. There are numerous other cases where an extension of time has been granted because the applicant initially filed an application in the unfair dismissal or general protections jurisdiction, and then pivoted to the other jurisdiction after they became more familiar with both jurisdictions.[7] That could lead to an argument that it would be unfair to Mrs Li for an extension not to be granted.

  1. However, this case is slightly different in that Mrs Li did not file a general protections application for two weeks after discontinuing her unfair dismissal application.

  1. Given this distinguishing element, I consider this to be a neutral factor. 

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

  1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

  1. 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.[8] 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.[9]

  1. Having regard to all of the matters listed at s.366(2) of the FW Act, I am marginally satisfied that there are exceptional circumstances.

  1. I have found each factor I am required to take into account to be neutral, except for action taken by Mrs Li to dispute the dismissal. I have found this factor weighs strongly in favour of Mrs Li being granted an extension of time. I am satisfied the filing of an unfair dismissal application within 21 days of the dismissal taking effect constitutes an exceptional circumstance, even though I am not satisfied Mrs Li has established with sufficient evidence why there was a further delay from 11 January 2024 until 25 January 2024.

  1. I also consider there would be an element of unfairness if Mrs Li completely loses the opportunity to contest her dismissal when it has been clear to CCIG since at least 15 November 2023 that Mrs Li intended to contest the dismissal. That position has not changed to this date.  

Conclusion

  1. Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

  1. Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[10] I am satisfied that it is appropriate to extend the period for the application to be made to 25 January 2024.

  1. The dispute will proceed to be listed for conference.

COMMISSIONER

Appearances:

Mrs Li representing herself.

Ms Butters from the Queensland Hotels Association representing CCIG.

Hearing details:

2024.
19 March.
Via video.


[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[7] For example, see Gael Souroop v State of Victoria (Department of Justice and Regulation) [2018] FWC 1759 and Mrs Joanne Calcagnor v DRD Accountants Pty Ltd [2022] FWC 1313.

[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[10] Fair Work Act 2009 (Cth) s 577.

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