| [2021] FWC 783 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thieu Khai Chung
v
HSS Fabrication PTY LTD
(U2021/364)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 15 FEBRUARY 2021 |
Application for an unfair dismissal remedy – application filed out of time – exceptional circumstances– further period allowed for the application to be made.
[1] On 14 January 2021, Mr Thieu Khai Chung made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Chung’s unfair dismissal application is HSS Fabrication Pty Ltd.
[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Chung recorded that the unfair dismissal application was not made within 21 calendar days of his dismissal taking effect. As s.394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3), this file was allocated to me for the purposes of determining whether an extension of time for the making of Mr Chung’s application should be granted.
[3] Mr Chung filed material in response to Directions I made on 18 January 2021 however the Respondent has failed to file any material at all in response to either the unfair dismissal application or my Directions.
[4] I conducted a Hearing on 12 February 2021 to consider Mr Chung’s application for an extension of time for the filing of the unfair dismissal application. Mr Chung appeared and gave evidence and I granted him permission to be represented by his lawyer, Ms Jordana Le. Although the Respondent was notified in advance of the hearing, there was no appearance on its behalf. An interpreter provided assistance to Mr Chung.
[5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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. 1 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.2
[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.
[8] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 3
[9] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 4
[10] Although the Form F2 outlined that Mr Chung was notified of his termination on 19 October 2020 and it took effect the same day, it became apparent when I heard his evidence that he was left confused as to his employment status following a conversation with his employer on that day when he was told there was no more work. There has at no stage been written notice of the termination of his employment provided to Mr Chung. Having tried to contact his employer following 19 October 2020, Mr Chung said there was no response to his attempts and so he visited the workplace on or about 9 November 2020. A heated conversation with his employer regarding his employment ensued and this led Mr Chung’s employer to contact the police. The attending police officer persuaded Mr Chung to leave the premises and obtain legal advice in relation to his grievances. I am satisfied on the basis of Mr Chung’s oral testimony that any confusion he might have had in relation to his employment status after 19 October 2020 was well and truly dispelled on 9 November 2020 and I am also satisfied that from that time, Mr Chung was aware that his employment had been terminated. Having been made on 14 January 2021, Mr Chung’s unfair dismissal application was therefore filed 45 days late.
[11] As part of his explanation for the delay, Mr Chung submitted he has poor English skills, no legal knowledge and had no idea he needed to lodge an unfair dismissal application within 21 days. While I accept this to be the case, having received Mr Chung’s evidence, it is well established that ignorance of one’s rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed. 5
[12] Mr Chung did, however, seek legal assistance on 11 November 2020. A letter was sent to his employer on this date claiming various employment entitlements and flagging “further legal action” if the Respondent took no action within the next 14 days but nowhere amongst the contents of this letter dated 11 November 2020 was a potential unfair dismissal claim raised. The Form F2 includes the statement “On 11 November 2020, client attended our office to provide instructions, we note it was already outside of the 21 day deadline” but as I have outlined above, I am persuaded that it had not been clearly communicated to Mr Chung that he had been dismissed until 9 November 2020. Nonetheless, the Form F2 and statements from Ms Le during the course of the hearing indicated to me was that Mr Chung’s lawyers were aware that there was a 21-day time limit for the making of an unfair dismissal application and they at least were of the view that this may have already been exceeded when first they consulted with Mr Chung.
[13] It would appear that between 11 November 2020 and 17 December 2020, Mr Chung consulted the ATO and possibly what he described as “Fair Work”, too. It was difficult to discern the point at which Mr Chung first decided to pursue an unfair dismissal application. Ms Le stated that during 11 November 2020 and 17 December 2020, some research into Mr Chung’s situation was carried out but regardless, the 21-day time limit expired at midnight on 30 November 2020. Ms Le stated it was not until 17 December 2020 that she was instructed by Mr Chung to file an unfair dismissal application on his behalf. The Form F2 was signed by Mr Chung on this day. When I asked Ms Le why the Form F2 was not then filed immediately and why it took until 14 January 2021 to be lodged with the Commission, she stated that her firm had other urgent work to attend to and it was then the Christmas Holiday period. She also stated that the firm’s office closed on 23 December 2020 and re-opened on Monday 11 January 2021.
[14] In considering these circumstances, I note that Mr Chung consulted his lawyers on the second day after which I am satisfied he was made aware his employment had been terminated and that this was well within the 21-day period prescribed for making an application. Having regard to what was set out in the Form F2, I consider Mr Chung was not well served by his lawyers. This is because although seemingly aware of unfair dismissal rights and the 21-day deadline in relation to unfair dismissal, Mr Chung’s lawyers neither threatened an unfair dismissal application in the letter of demand they sent to the Respondent nor lodged one at the earliest opportunity. There was no apparent follow-up on Mr Chung’s behalf when the 14-day deadline outlined in the letter of demand was reached on 25 November 2020 and even if they were not formally instructed by Mr Chung until 17 December 2020, I consider the lawyers should have raised the prospect of making an unfair dismissal application with him before then and been more proactive on his behalf. The failure to then lodge the unfair dismissal application eventually completed on 17 December 2020 until 14 January 2021 is absolutely inexcusable.
[15] In the circumstances of this case, I am persuaded that the deficient legal advice and services provided to Mr Chung by his lawyers provides an acceptable explanation for the delay and this weighs in favour of a conclusion that there are exceptional circumstances.
[16] I am satisfied that on and from 9 November 2020 Mr Chung was aware he had been dismissed and had the full period of 21 days to lodge his application. This is therefore a neutral consideration.
[17] Mr Chung retained a lawyer and both sought restoration of superannuation payments and queried his rate of pay. Initially at least however, this was only in the context of attempting to obtain alleged unpaid entitlements rather than being action taken to dispute the dismissal. While I accept Mr Chung’s evidence that he challenged the basis for his dismissal on 9 November 2020, there was no further action until the application was lodged. Accordingly, in all the circumstances of this matter, this factor weighs only marginally in favour of a finding that there are exceptional circumstances.
[18] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of granting an extension of time. It is a neutral factor. Some decisions of the Commission take a different view and have held that the absence of prejudice weighs in favour of an extension. Even if I was to adopt this approach, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
[19] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.
[20] Mr Chung says his dismissal was unfair because he was never given any warning, notice or the chance to show cause before his dismissal despite his employment contract stating that he was employed full-time until 21 February 2021, with an option to extend. Mr Chung also submits that he was not paid annual leave or entitlements, no superannuation contributions were made on his behalf and that he was not paid in full from May 2020 despite other, younger employees doing the same work as him receiving their full rates of pay.
[21] The weight to be given to this merits consideration is dependent on the extent to which there is merit in the substantive application. 6 While it is difficult to weigh any competing view of the facts in the absence of submissions from the Respondent, I am nonetheless satisfied that Mr Chung has outlined a prima facie case that suggests his unfair dismissal application is of sufficient merit so as to weigh in favour of a finding of exceptional circumstances.
[22] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Mr Chung submits that as he is 66 years of age and worked the same hours as younger employees, it was unfair that he was paid less than them while doing the same work. These appear to be matters going to the merits of Mr Chung’s application. He has not brought to my attention any relevant matter concerning this particular consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
[23] Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.
[24] As I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act, I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr Chung to make the Application to 14 January 2021.
[25] Accordingly, the matter will now be the subject of further directions so that the question of whether Mr Chung’s dismissal was unfair can be heard and determined.
DEPUTY PRESIDENT
Appearances:
J Le for the Applicant.
No appearance for the Respondent.
Hearing details:
2021.
February 12:
Melbourne via Telephone.
Printed by authority of the Commonwealth Government Printer
<PR726977>
1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
2 Ibid.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
4 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
5 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].
6 Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].