Yongzhou Yang v Frigrite Refrigeration International Pty Ltd

[2020] FWC 752

[2020] FWC 752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yongzhou Yang
v
Frigrite Refrigeration International Pty Ltd
(U2019/9952)

DEPUTY PRESIDENT CROSS SYDNEY, 12 FEBRUARY 2020

Application for an unfair dismissal remedy - jurisdictional objection - out of time - application is dismissed.

[1] On 5 September 2019, Mr Yongzhou Yang (the Applicant) lodged a Form F2 unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) with the Fair Work Commission (the Commission) (the Application). The Applicant stated that he began working for Frigrite Refrigeration International Pty Ltd (the Respondent) on 8 August 2014. In the Application, the Applicant alleged that he was notified of his dismissal on 15 May 2018, with his dismissal taking effect on that date.

[2] In the Application the Applicant indicated he was not making the Application within 21 days of the dismissal taking effect. If the dismissal took effect on 15 May 2018, the Application should have been made by 5 June 2018. As such, the Application was 454 days out of time.

[3] It appears that at no stage during the conduct of the Application by the Commission, the Respondent filed an employer’s response.

[4] As noted above, applications for unfair dismissal remedy must be made within 21 days after a dismissal took effect, or in such further time as the the Commission may allow. Section 394(3) of the Act provides for the circumstances in which that time limit may be extended. It is as follows:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

The Application

[5] In the Application there were two relevant passages for consideration in relation to the Applicant’s application to extend the time within which he can lodge the Application at the Commission (the EOT application). They are:

“During that time, I have no time to deal the application as my son was found cancer in his brain and his spinal nerve. And then he had to take a radiation therapy progress. I have to send him to and back for the treatment at hospital and care him as the serious reaction of radiation therapy. And also to my younger son (1 year old) need to care at same time. Now I have to time making the dismissal application.”

And:

“At the early of Apr in 2018, I was told by my employer that the company Sydney office and warehouse will be closed down by end of Apr. And she did not mention my job will be terminated at that time. Even I did not have time to cliam my annual leave.”

“I had worked at this company (Fralu Commercial Kitchen and Engineering P/L) for more than 3 years and 9 months. First, I worked as store man and after that worked as store man and salesman both. But in fact, I did almost everything in this company except finance. From product order placing to factory, goods unloading from container, visit to client, sales and co-ordinate for after-sales service. I am worked harder even in weekend without payment if need. After three years, I was transferred to same owner but another company, calls Frigrite Refrigeration International Pty Ltd, as a Nation Sales manager. But I did more than what I did in Fralu. The product range extended from commercial kitchen equipment to supermarket fridge cabinet.

At the end of Apr 2018, Company closed down the office and warehouse in Sydney, and shift to Melbourne. Then my job was terminated as the wage was stopped to pay since 15th of May.”

(Original text retained)

Other Relevant Documentation Received by the Commission

[6] The parties have been unrepresented throughout the conduct of the matter, and each has expressed at various times that English may not be the language in which they would ordinarily communicate. As a result, there have been various emails and documents provided to the Commission. I record the following communications and documents as being material received and considered by the Commission for the purposes of determining the EOT application:

(a) On 11 November 2019, Ms Jenny Jiang, the Respondent’s representative, sent an email to the Chambers of Vice President Catanzariti in the following terms:

“I was shocked to see you and Mr. Yang’s mails. I missed your email. I don’t know how can I appeal to the Fair Work Commission?

The following is my letter to Mr. Yang. My English is not good. This letter was completed by translation software. It took me a few days and it might not be clear enough.

‘Dear Mr Yang

I am confused about your behavior. Have I unfairly dismissed you?

In March 2018, your son started to be treated after getting sick，you didn’t go to work normally. During this period, I never deducted a penny your salary. I also rushed to the hospital to give you my condolences and cash.

You are the only employee of Sydney, and all business is under your control. As you are not working properly, Sydney’s business is zero. The rent for the warehouse need pay every month, your salary needs to be paid.

The Sydney office is really unsustainable. You suggest closing the Sydney warehouse and ending the job. You are actively contacting your friend to move the warehouse inventory to his farm. At this point we are very friendly and have ended all working relationships. After that we still maintain good personal contacts.

Now that you suddenly treat me like this, I really can’t understand and accept it.

I feel very sad about the misfortunes of your family, but you can’t treat me this way.

My family is suffering too badly, and my heart is really sad.’”

(Original text retained)

(b) On 16 November 2019 the Applicant sent an email to the Chambers of Vice President Catanzariti, which annexed a discharge referral note from the Sydney Children’s Hospital, in the following terms:

“Thanks for your coordination to allow me submit file.

Refer to mentioned issue, you may refer to attached file, the discharge referral note from Sydney Children’s hospital (dated 22 March 2018). which is a part of my son’s (Patient name: zijiang Yang) medical history records. It has indicated the diagnoses result. After the operation, my kid has started further oncology and radiation therapy treatment. There are several stages treatment and it’s taken about three months. During the periods, my kid got serious physical reactions and mental impact from treatment. I have to focus on his treatment and care him. That is why I have not time to submit the application in time (within requested 21 days).

I expect that your VP can review my kid’s note and scenario, to make approval to my extension of time request. Please let me know if any further information is required for my application.

By the way, please treat the discharge referral note as privacy information.”

(Original text retained)

(c) On 19 November 2019 the Applicant sent a further email to the Chambers of Vice President Catanzariti, which annexed a redacted discharge referral note from the Sydney Children’s Hospital, in the following terms:

“I have worked out a pdf file, which the privacy information (such as name, age, sex etc) were hided, rest of all are as same as original one sent yesterday. The hided version you can send to third party for ref.

Also, I may add here, the radiation therapy treatment. start after middle of Apr and it continuous to end of May 2018. At that time, my kid was be at home. I have to drive him from home to hospital everyday. And my kid had very serious reactions, such as hair drop, vomiting day & night, high fever and mental delusion etc. In this terrible time, he lost his weight 25 kg. I have to concentrate to care him.

Thanks for your time to review my mail and sent it to your VP for reference.”

(Original text retained)

Listing for Hearing and Submission

[7] On 20 November 2019 the matter was referred to myself for determination of the EOT application. It was listed for directions in person before the Commission at 12.00pm on 3 December 2019.

[8] There was no appearance at the directions hearing by either the Applicant or the Respondent. As a consequence, I issued the following Directions by email:

“The Applicant is to file and serve with Chambers and the Respondent his outline of submissions addressing his application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 17 December 2019.

In preparing his outline of submissions, the Applicant is invited to have regard to the considerations listed in s.394(3) of the Fair Work Act 2009 (Cth).”

(Original emphasis retained)

[9] On 17 December 2019 my Chambers received the following submission from the Applicant:

“Issue:

At the early of Apr in 2018, I was told by my employer that the company Sydney office and warehouse will be closed by end of Apr. And all products are shifted to Melbourne. And she did not mention my job will be terminated at that time by officially informed. In stead , she mentioned that you may work at home, and with same position.

But finally, in the end of April, the office and warehouse of Sydney was closed. I was terminated to pay salary in the middle of May 2018 without any formal process.

Even I did not have time to claim my annual leave.

Outline:

The employer did not given any reasons in formal to the dismissal.”

(Original text retained)

(the Applicant’s Submission)

Consideration

[10] I now consider whether, under s.394(2)(b) of the Act, to grant or refuse the EOT application. In the exercise of this discretion I must be satisfied that there are “exceptional circumstances” which justify granting an extension of time, taking into account the six factors listed in s.394(3).

Reason for the delay (s.394(3)(a))

[11] The only reason for the delay contained in the Applicant’s Submission would seem to be the move to close the Sydney office and the physical move of all products to Melbourne. However, it is quite clear from the documents received by the Commission that the Applicant was affected around the time of his termination of employment by the serious health difficulties of his son. In fairness to the Applicant I have considered the materials that disclose those concerns.

[12] The Applicant alleges he was notified of his dismissal on 15 May 2018. However, the Applicant’s son was discharged from the Sydney Children’s Hospital on 22 March 2019, almost two months earlier. While the Applicant made clear by his email of 19 November 2019 that his son had radiation therapy until the end of May 2018, there is no material after that date indicating the Applicant’s son’s health could be the basis for the Applicant’s delay after the end of May 2018, and certainly not for the better part of 2019. Ms Jiang’s email of 11 November 2019 is consistent with that chronology.

[13] Considering the reasons the Applicant has, or apparently could have, provided for the delay in the Application, he has failed to provide a credible reason for the delay in taking prompt action during the 21 day statutory time frame, or for the significant period thereafter. While I would accept the significant health difficulties of the Applicant’s son would provide a basis for a finding of exceptional circumstances, there is no evidence of those difficulties extending past the end of May 2018, a time that was within the 21 day statutory time frame. The Applicant’s failures to provide acceptable reason(s) for the delay would weigh heavily against a finding of exceptional circumstances 1.

Whether Mr Yang first became aware of the dismissal after it had taken effect (s.394(3)(b))

[14] There is no suggestion that Mr Yang became aware of his dismissal after it had taken effect. Indeed, Ms Jiang’s email suggests that it was Mr Yang who suggested closing the Sydney warehouse. This consideration is neutral.

Any action taken by Mr Yang to dispute the dismissal (s.394(3)(c))

[15] There is no evidence of Mr Yang challenging his dismissal, and he makes no such submission that he did. While after such a relatively long period of delay this consideration could have weighed against the Applicant, in the circumstances of the parties being self-represented and having some apparent difficulties with Commission processes, I apply no weight to this consideration.

Prejudice to the respondent (s.394(3)(d))

[16] In light of the directions being directed only to the Applicant, this was not an area traversed in the Applicant’s Submission, and I place no weight upon it.

The merits of the application (s.394(3)(e))

[17] On the evidence before me I am unable to conclude that the Application is totally without merit, though clearly issues regarding genuine redundancy may arise. This is a neutral factor in this case.

Fairness as between Mr Yang and other persons in a similar position (s.394(3)(f))

[18] This factor has no particular application to this matter.

Conclusions

[19] The Application was 454 days out of time. While, as noted above, I would accept the significant health difficulties of the Applicant’s son would have provided a basis for a finding of exceptional circumstances, there is no evidence of those difficulties extending past the end of May 2018. No other factors support a finding of exceptional circumstances surrounding the Applicant’s failure to lodge his application until 5 September 2019.

[20] I refuse to allow any further time for the lodgment of the Application. The Application is dismissed, and I so order.

DEPUTY PRESIDENT

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 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd[2018] FWCFB 901at [45].