Ziyun Wang v Studylink Service Pty Ltd - [2025] FWC 1543

[2025] FWC 1543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ziyun Wang
v

Studylink Service Pty Ltd

(C2024/9152)

COMMISSIONER MATHESON

SYDNEY, 4 JUNE 2025

Application to deal with contraventions involving dismissal

Ziyun Wang (Applicant) has made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Act) alleging she was dismissed in contravention of the general protections’ provisions in Part 3-1 of the Act. Studylink Service Pty Ltd (Respondent) is the Respondent to the application.

Section 366(1) of the Act provides that an application under s.365 must be made:

(a)within 21 days after the dismissal took effect; or
(b)within such further period as the Commission allows under s.366(2) of the Act.

The Applicant was dismissed on 26 September 2024. The 21 day period ended on 17 October 2024. The application was lodged on 14 December 2024, outside of the 21 day period. The Applicant therefore requires an extension of time if the application is to proceed.

Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances taking into account:

(a)the reason for the delay; and
(b)any action taken by the person 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 between the person and other persons in a like position.

Hearing and submissions

A hearing was held on 14 February 2025 to determine whether an extension of time should be granted. Both parties sought to be represented by a lawyer. Section 596(2) of the Act has the effect that the Commission may only grant permission for a person to be represented by a lawyer in a matter before it if:

(a)it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b)it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c)it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

The Applicant sought to rely on s.596(2)(b) because English is not the Applicant’s first language, and she needs assistance in making representations to the Commission and in understanding the legal framework. The Respondent did not object to the Applicant being represented by a lawyer. The Respondent also sought to rely on s.596(2)(b) because the representative of the Respondent had limited proficiency in English and was a small business owner with limited knowledge of the legal framework. The Applicant did not object to the Respondent being represented by a lawyer.

Having regard to the limited proficiency that the parties had in relation to the English language and the assistance needed to provide representations to the Commission in those circumstances, I granted permission to both parties to…

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.

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Details

Case: [2025] FWC 1543
Decision Date: 4 JUNE 2025

CaseChat Overview and Summary

Ziyun Wang applied to the Fair Work Commission under s.365 of the Fair Work Act 2009 for an extension of time to lodge her application in relation to her dismissal by Studylink Service Pty Ltd, the Respondent. The Commission was required to determine whether there were exceptional circumstances warranting an extension of time under s.366 of the Act. The application was made outside the 21 day period stipulated in the Act and the Applicant needed to show that there were exceptional circumstances warranting an extension of time. Both parties were permitted to be represented by a lawyer and the matter was heard on 14 February 2025.

The Applicant submitted that she received incorrect legal advice from her previous legal representatives, Juris Chambers Lawyers, who advised her that she should lodge an unfair dismissal application, which she did within 21 days of her dismissal. The Applicant submitted that she was blameless for the delay in lodging the general protections application because she relied on the advice of her previous legal representatives. The Respondent submitted that the Applicant did not provide sufficient evidence to demonstrate exceptional circumstances and that the Applicant had an opportunity to seek clarification or obtain a second opinion within the prescribed timeframe.

In relation to the reason for delay, it was found that the Applicant formed the view that a general protections application was more suitable after seeking a second opinion from another lawyer when her unfair dismissal claim failed to settle, and not necessarily because she received incorrect legal advice. In relation to the action taken by the person to dispute the dismissal, it was found that the Applicant took actions to dispute her dismissal, including making an unfair dismissal claim within 21 days. In relation to the prejudice to the employer, it was found that the Respondent would likely incur further cost and inconvenience if an extension of time was to be granted in circumstances where it has already responded to a dismissal related application and participated in conciliation in relation to that application and would therefore suffer prejudice. In relation to the merits of the application, it was found that the merits of the application will necessarily turn on the evidence and that it is not possible to make an assessment of the merits of the application based on the limited material before the Commission. In relation to fairness between the person and other persons in a like position, it was found that neither party brought to the Commission’s attention any relevant matter concerning this factor and the Commission was unaware of any relevant matter.

The Commission was not satisfied that there were exceptional circumstances warranting an extension of time and dismissed the application.

Orders