Zhi Li Feng v Spotless Facility Services Pty Ltd

[2014] FWC 4531

[2014] FWC 4531

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zhi Li Feng
v
Spotless Facility Services Pty Ltd
(U2014/10192)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 7 July 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 20 June 2014 Ms Feng lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief in relation to the alleged termination of her employment with Spotless Facility Services Pty Ltd (Spotless).

[3] In that application, Ms Feng advised that her dismissal took effect on 17 August 2013. She advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“Because I got big mental issue cann’t handle. The Dr. adviced to first recovery then to claim.” 1 (sic)

[4] The application was referred to me for consideration. On 24 June 2014 my Associate advised the parties that the extension of time issue would be considered through a telephone conference on 7 July 2014. The parties were provided with substantial background information relative to the application and extension of time issue. Ms Feng was required to provide a witness statement and a copy of any document relied upon, by 30 June 2014.

[5] Whilst no Employer’s Response (Form F3) to the application has been received, Spotless has lodged a Form F4 in which it objected to the application on jurisdictional grounds. Spotless asserted, and provided material in support of its position, that it did not dismiss Ms Feng. In the alternative, Spotless asserted that the application was lodged substantially outside of the statutory time limit and there was no basis for an extension of time.

[6] Ms Feng provided a substantial quantity of material to the Fair Work Commission (FWC) in support of her position. Because that material was not provided to Spotless, I arranged for it to be forwarded to Spotless during the telephone conference.

[7] A sound file record of the 7 July 2014 conference was kept. Ms Feng participated in this conference. At various times she requested that her social worker (referred to as Mei) also participated in the conference. Spotless was represented by Mr Douglas as its General Manager, Human Resources.

[8] My decision on the extension of time issue was made on the material before me. That information discloses that Ms Feng was employed by Spotless from October 2010. Ms Feng provided copies of Orders made under South Australian Mental Health legislation providing for her compulsory treatment for a mental illness in a facility for that purpose from 17 August 2013 to 8 October 2013. Spotless and Ms Feng confirmed correspondence from Spotless to Ms Feng on 26 September 2013 which expressed concerns about her behaviour at work, noted her absence from work and foreshadowed a meeting with her when she was medically cleared to return to work. On 10 October 2013 Ms Feng's husband wrote to Spotless, advising that she was unable to respond to the correspondence of 26 September 2013 and providing the contact details for her various doctors. On 15 October 2013 Spotless acknowledged this letter and again referred to a meeting to be arranged when Ms Feng returned to work. On 26 October 2013, Ms Feng wrote to Spotless in the following terms:

“After carefull consideration and professional advice from my G.P. and Psychologist I will not be returning to work at Modbury Hospital it is with regret that I do so but the requirements for return set out in your letter 26th September 2013 would only exacerbate my mental condition.

In order to apply for a Disability Support Pension I will require a Employment Separation certificate as soon as possible.”

[9] Spotless subsequently provided Ms Feng with an Employment Separation Certificate dated 28 October 2013. That Certificate confirmed that she resigned on 26 October 2013.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(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.”

[12] In order to consider the extension of time issue I need to be satisfied as to the date that the termination of Ms Feng's employment took effect. Notwithstanding the advice in her application that this was 17 August 2013, Ms Feng asserted in the course of the conference that the termination of her employment took effect on 26 October 2013 when she provided advice to Spotless that she would not return to work. Ms Feng argued to me that the correspondence of 26 September 2013 meant that she was forced to resign her employment. If 26 October 2013 is taken as the effective date of termination of employment, then, in terms of s.394(2), the application was made outside of the specified 21 day time limit. It was lodged some 216 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Ms Feng's circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Ms Feng has provided does not adequately substantiate why the application could not have been lodged within time. It may well be the case that Ms Feng was suffering from a substantial mental illness but medical evidence to substantiate her assertion that she was unable to lodge the application before 20 June 2014 has not been provided to me.

[14] As Ms Feng agreed that she wrote the letter of resignation of 26 October 2013. I am satisfied that she was aware of the termination of her employment on that date.

[15] I am not satisfied that, other than this application, Ms Feng took other action to challenge the termination of her employment.

[16] I have concluded that the granting of an extension of time would prejudice the respondent in this matter.

[17] In terms of the merits of the application, Ms Feng can only be unfairly dismissed if, in fact she was dismissed. Section 386 defines dismissal in the following terms:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[18] On the information before me Ms Feng was not dismissed at the initiative of the employer. She resigned her employment and accordingly I do not consider that she is able to pursue this application. I am not satisfied that the information before me establishes a basis upon which Ms Feng is able to assert that the advice provided to her by Spotless left her with no alternative other than to resign. The advice provided to her by Spotless identified concerns about her behaviour and confirmed that Spotless wished to discuss these concerns with her when she was well enough to return to work and was medically cleared to do so. Nothing in the material provided to me, or the advice provided by Ms Feng establishes actions taken by Spotless which left Ms Feng with no choice other than to resign. Further, Ms Feng’s own advice is that she needed an Employment Separation Certificate for Social Security purposes.

[19] Considerations of fairness relative to persons in similar circumstances to Ms Feng's do not support an extension of time.

Conclusion

[20] For the reasons I have set out above, Ms Feng's circumstances do not support an extension of time. Those circumstances have not been established as exceptional for the purposes of s.394(3). Further, I have concluded that Ms Feng was not dismissed for the purposes of this part of the FW Act. Consequently, an extension of time for lodgement of the application in these circumstances, where I am satisfied that the application cannot further proceed, is inappropriate. The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR552849) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

Z Feng on her own behalf.

J Douglas representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 7.

 1   Form F2, para 1.4

Printed by authority of the Commonwealth Government Printer

<Price code C, PR552848>