Fair Work Act 2009

s.604 - Appeal of decisions

Appeal against decision PR750315 of Deputy President Boyce at Sydney on 8 February 2023 in matter number U2022/11974

[1] Ms Aiming He (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against an ex-tempore decision and order[1] (Decision) made on 8 February 2023 by Deputy President Boyce (Deputy President).

[2] The Decision concerned a consideration of whether to grant an extension of time within which to make an application for an unfair dismissal remedy pursuant to s.394 of the Act.

[3] An application for an unfair dismissal remedy made pursuant to s.394 of the Act must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (Commission) allows.

[4] There is a lack of clarity about when the Appellant's termination of employment took effect. The Appellant last worked for the Respondent on 21 November 2021. Before the Deputy President the Respondent did not contest that the employment ended on 30 November 2021. However, the Respondent contended that the Appellant resigned.

[5] Before us, Tony Gao, acting for the Appellant, who is his mother, contended that the termination of employment occurred on 23 December 2021.

[6] Consequently, the application was required to be lodged by either:

1. 21 December 2021; or

2. 13 January 2022.

[7] The unfair dismissal application was filed on 18 December 2022. That is to say, the application was either 362 or 339 days out of time.

[8] The Deputy President refused to grant an extension of time for the filing of the application as he was not satisfied there were exceptional circumstances and therefore, there was no basis to allow an extension of time.

[9] This matter was listed for permission to appeal only. NYSD WC Pty Ltd (Respondent) was not required to file any material and it did not do so. The application for permission to appeal was heard on 8 February 2023.

[10] For the reasons that follow, permission to appeal is refused.

[11] The Appellant commenced employment with the Respondent on 14 April 2016 (although she had worked for related entities prior to this date). The Respondent runs a restaurant called New Shanghai, Westfield Sydney.

[12] On 21 November 2021 the Appellant worked her last shift. The Respondent contended that the Appellant resigned on that day. This is contested.

[13] On 5 occasions between 4 and 27 November 2021 the Appellant attended medical clinics and received treatment. The Appellant also had a Telehealth consultation on 30 November 2021.

[14] On 30 November 2021 in a WeChat exchange between the Appellant and a representative of the Respondent, the Appellant was advised "don't come to work, you don't need to come to work. I got new people." It was this date that the Deputy President adopted as the date that the employment ended.

[15] Up until 23 December 2021 the Appellant pursued payments from the Respondent. On that date the respondent blocked the Appellant on WeChat. Before us, the Appellant contended that, consequently, that was the day that the employment relationship ended.

[16] Nearly 11 months passed with no action being taken by the Appellant.

[17] On 8 November 2022 the Appellant told her son, Mr Gao, about the cessation of her employer with the Respondent. On that date Mr Gao made contact with representatives of the Respondent with discussions between Mr Gao and representatives of the Respondent continuing on 9 November 2022.

[18] On 18 November 2022 the Appellant, Mr Gao had a face-to-face meting with representatives of the Respondent. The matters in dispute between them in relation to the Appellant's employment remained unresolved.

[19] On 25 November 2022 Mr Gao sent correspondence to the Respondent asking that the Respondent "rectify" the "issues".

[20] On 25 November 2022 solicitors for the Respondent wrote to the Appellant. The Respondent's solicitors explained that "any claim for unfair dismissal ... must be made within 21 days of the dismissal."

[21] On 4 December 2022 Mr Gao lodged an inquiry with the Commission about making an unfair dismissal application for his mother, the Appellant. He asked, "can we apply after 21 days?"

[22] On 6 December 2022 the Melbourne Registry of the Commission responded to Mr Gao's inquiry and explained the basis upon which the Commission may extend the time period for lodging a dismissal dispute. The 21-day time period was emphasised.

[23] On 18 December 2022 the Appellant filed the application (dated 15 December 2022). We observe that the application was filed 23 days after the Appellant was first advised about the 21-day time limit by the solicitors for the Respondent and 12 days after the Commission confirmed the 21-day time limit.

[24] In her application for unfair dismissal the Appellant explained that her application was late because:

"At the time I was unfair dismissal, I was felt very unwell and I was sick for two week and finally get recovered. Because the manager forced me to work during I am sick period, I couldn't, and I ask one lady to temporary replace me, and she helped me to work a week, but the manager did not pay her until I kept ask for, and later I was unfair dismissal.

Due to I can not speak English and I also do not know the Australia employment law and regulation, I did not get any sick leave and care leave in my past 7 years employment. Even I was unlawfully treated when I was sick, and forced to leave the employment. I still do not know that I have right to apply the unlawful dismissal.

Recent I moved with my son, and he found out the situation that my previous employer treated me unfairly and we tried to talk to the employer regarding for the unlawfully dismissal, but they told me that it has reach 21 days. I believe that all Australia should get fairly treated in the employment. I hope you could consider my application."

[25] The Deputy President observed that there was a dispute about whether the Appellant was dismissed. He further observed that,

"However, there is no dispute between the parties that the applicant's employment ceased on or around 30 November 2021. Whether the applicant was dismissed, constructively dismissed, forced to resign or resigned, is not a question that I need to resolve today. Today I am dealing with an out of time application. What is relevant is that the applicant's employment came to an end one way or the other on or around 30 November 2021."[2]

[26] As we have stated above, before us, Mr Gao contended that the Appellant's employment ended on 23 December 2021. Having regard to the significant delay in the filing of the application, nothing turns on whether the employment ended on 21 November 2021, 30 November 2021 or 23 December 2021.

[27] After setting out the principles relating to granting an extension of time[3] the Deputy President made the following findings in relation to s.394(3)(a) - the reason for the delay[4]:

"In this matter the applicant's reasons for delay are set out in her form F2 at item 1.6 in an email to the chambers of Catanzariti VP, dated 25 December 2022, in oral submissions made at the hearing today and in an email to my chambers, dated 14 January 2023. In summary, the applicant submits that she was unable to file her application within time due to her being unwell in November and December 2021 due to her age - that of 65 years - and due to her lack of English proficiency.

In support of her application, the applicant relies upon various pieces of medical evidence which I went through with Mr Gao during the hearing. My observation of that medical evidence is that it all concerns the period of November 2021. In other words, it does not otherwise go to or explain from an evidentiary point of view any illness or incapacity in respect to the applicant post November 2021, which is effectively some 12 months post the applicant's cessation of employment.

In his email dated 14 January 2023, Mr Gao relevantly - after attaching that medical evidence - makes the following submission:

In November 2021, my mother was very sick. However, management from New Shanghai, Iris, kept ask her come to work at that time. She still come to work when she was very sick due to the managers kept ask on 23 November 2021. She worked nearly faint and very sick. She couldn't, but she ask someone, Ms Chan, to temporarily replace her position. However, on 30 November Ms Chan was fired and New Shanghai even did not pay her wage.

Due to my mother ask a friend to replace the position, my mother paid her friend first asked and New Shanghai pay back the wage, but Iris did not pay initially until my mother kept ask for it and my mother was unfair dismissal at that time. From the WeChat voice message Iris is very impatient, rude. She promised to pay my mother $850 sick leave even my mother has not received today. Iris from New Shanghai blocked my mother's WeChat and my mother cannot get in touch with Iris.

At that time my mother suffered physical and mentally pain. During she was very sick period she stayed in bed for nearly one month. She could not understand why the company can treat her in this way. To be honest, I understand the unlawful dismissal needs to submit 21 days after she was dismissal, but please take this case in consideration as my mother was very sick. She nearly went to see the doctor the whole month and many doctors said because my mother was very tired, but still worked when she was sick, this made the symptom more serious.

The second reason is that New Shanghai manager take advantage from the elder employees who cannot speak English and unlawful treat the employees. Even she mentioned in the WeChat she owed my mother 850. My mother still have not received this money. Many thanks for your considerations. Best regards, Tony Gao, Aiming He representative.

In the form F2 at item 1.6, the applicant makes the following submission ....

Having regard to the evidence that is before me and the submissions of the applicant, I do not consider that the more than 12-month delay in filing her application is supported by satisfactory evidence or relevant submissions that would explain the reason for that delay. It is a very substantial delay.

I note that in the case of Mohammed Ayub v NSW Trains [2016] FWCFB 5500 that a Full Bench of the Commission described the existence of exceptional circumstances in the context of an out of time application as being a very high bar and strictly limited. Having regard to my finding that the reasons put forward by the applicant are unsatisfactory in terms of explaining the reason for delay in filing her application, I conclude that the applicant's reason for delay is such that it weighs against any finding as to the existence of exceptional circumstances in this case."

[28] In respect of the remaining considerations in s.394(3), the Deputy President found[5] the following:

"Turning next to whether the applicant became aware of her dismissal after it had taken effect, I note that the applicant does not assert that any action was taken to dispute her dismissal prior to an approach that was made some time in November 2022 of the respondent's management. Again, there is no explanation as to why it took so long for the applicant to dispute her dismissal. I, therefore, consider this criterion to be a factor that weighs against any finding as to the existence of exceptional circumstances.

Turning next to prejudice, the respondent submits that the applicant's significant delay in lodging her application is likely to have prejudicial effect upon the respondent's ability to defend the application, noting that the application has been filed over a year after the circumstances relating to the applicant's termination/cessation of employment or dismissal occurred. I concur with the respondent that there is prejudice, or there would be prejudiced, occasioned by the delay in terms of the respondent's ability to adequately prepare to defend its case and I consider that that weighs against any finding as to the existence of exceptional circumstances.

The merits of the application is the next thing I must consider. I note that in terms of the merits they were not tested before me, and I note that it is not the role of the Commission to embark upon a detailed consideration of an applicant's case for the purposes of whether or not to grant an extension of time.

In that regard I rely upon the principles stated in cases of Kyvelos v Champion Socks Pty Ltd [1995] 67 IR 298 and also the principles stated by the Full Bench of the Australian Industrial Relations Commission in Kornicki v Telstra-Network Technology Group [1997] 140 IR 1 at 11. Having regard to the fact that the merits of the application were not tested before me, I consider the merits a neutral consideration in determining whether exceptional circumstances exist.

Next, I am required to consider fairness as between the applicant and other persons in a similar position. Neither party made any relevant submissions in this regard, albeit the respondent in submissions did refer to other cases dealing with fairness in terms of persons in a like position. However, each case will come down to its own facts and circumstances, and the cases referred to are not squarely on all-fours with the facts and circumstances in this case. Therefore, I consider that the question of fairness as between the applicant and other persons in a similar position in this matter is a neutral consideration that weighs neither for nor against the existence of exceptional circumstances.

Finally, just for clarity, I have dealt with whether the applicant became aware of her dismissal after it had taken effect. However, I just repeat that it appears clear that given the applicant did not work post 21 November 2021, that the applicant would have been aware at least at some time shortly after her cessation of work that she had been dismissed or the employment had ended. However, I treat that factor as a neutral consideration that weighs neither for nor against the existence of exceptional circumstances."

[29] The Deputy President concluded[6] that he was not satisfied that there were exceptional circumstances, when taking into consideration the matters set out in s.394(3) individually or collectively, and therefore, there was no basis to allow an extension of time. The Deputy President dismissed the application.[7]

[30] The Decision subject to appeal was made under Part 3-2- Unfair Dismissal - of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so.

[31] Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a 'significant error of fact' (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.

[32] The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Making a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters..."[8]

[33] Other than granting permission to appeal on a public interest basis, the grounds for granting permission to appeal are not specified. Considerations which have traditionally been treated as justifying the grant of permission to appeal include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if refused.[9]

[34] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[10] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[11]

[35] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[12] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.

[36] In the Form F7 Notice of Appeal_,_ the Appellant's grounds of appeal were stated as follows:

Ground 1 - The files and evidence of audio files sent on 7 Feb 2023 at 2:05 am which contains very important information of when the unfair dismissal was happened is ignored by the original hearing.

Ground 2 - The decision should ensure objectivity and impartiality of hearing process, my mother can not speak English, Interpreter did not translate any information to the applicant when the decision is made. Applicant has provided medical certificate to approve the she could not make the unfair dismissal in 21 days, we can not speak and understand English but no mean that she ignore that Australian Laws and Regulation

Ground 3 - Subjectively, the applicant is 67 age, she need guidance and assistant when she make the application. But at that time, she was so sick, especially in the covid period, its impossible for her to make the application

Ground 4 - The important is to identify when she was unfairly dismissal, The manager did not pay the sick leave and annual leave, she was forced to leave employees, she could not identify is "unfairly dismissal" to an 67 years old age with no English background at all.

[37] In the Form F7 Notice of Appeal_,_ the Appellant contended that there was public interest in the matter for the following reasons:

"• Unethical and unfair dismissal was happened to a 67 years old Lady, she even don't know what is unfairly dismissal, she works very hard in the Chinese Restaurant and do the most tiring work as dish washer with minimum standard with wage, however, when she was sick, The employer took the advantage with the elder employees no knowledge with Australian Laws, no sick leave and final annual leave was paid in the past 7 years of employment, was forced to leave the employment. Dismissal the employees during the sick period, all these are unethical and unlawfully in any countries.

• For non-English background with elder aged employees, she feel helpless when she face unethical employer. She have all evidence on the hand with she was unfairly dismissal, (doctor certificate, Audio evidence with social media (wechat) message, Due to do not understand there is a law call "unfairly dismissal", so she did not applied until the son found out after one years, she is illy treated by ex-employer. she felt helpless and hopeless if this matter cannot settled equally and fairly.

• The applicant lost the employment due to she is sick, she tried to help the company find the temporary employees to replace her position when she was sick, however, the company forced her to leave the employment. She has no income and can not afford a lawyer, and she has provided the all evidences, however, due to the delay of lodge the application due to sickness and no have ability to apply, she need a chance to review her case only. this is the sought for a 67 years old lady."

[38] During the hearing for permission to appeal, Mr Gao, appearing for the Appellant, made submissions consistent with those set out in the F7 Notice of Appeal.

[39] An application for an unfair dismissal remedy under s.394 of the Act must be made within 21 days after the dismissal takes effect or in such further time that the Commission allows. The Commission may allow an application to be filed out of time if the Commission is satisfied that exceptional circumstances exist, taking into account the factors set out in s.394(3).[13]

[40] The test for 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[14]

[41] The Deputy President's Decision clearly sets out his consideration of all of the matters he was required to take into account under s.394(3) and the Deputy President made his overall assessment of the Appellant's application on that basis.

[42] We are not satisfied that the grounds of appeal reveal any error in the Decision. In essence the grounds of appeal are a repetition of the reasons for the delay advanced at first instance. That is not the proper purpose for an appeal.

[43] Having considered the Decision, we make the following observations:

1. First, to the extent that the Deputy President did not listen to audio files submitted by the Appellant that was not an error. The material in the audio files was relevant to whether the dismissal was unfair and not to the question about whether an extension of time should be granted for making the unfair dismissal application.

b) Secondly, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[15]

1. Thirdly, the Deputy President did not find that the Appellant's limited proficiency of the English language was an exceptional circumstance. At all stages during the proceedings at the first instance, and on appeal, the Appellant was represented by her son who has a clear command of the English language. The Appellant did not advance a case based on representative error.

1. Fourthly, the medical evidence provided by the Appellant at first instance was limited to attendances and treatments in November 2021. That medical evidence does not explain the delay in filing the application between December 2021 and December 2022. That vast majority of the delay period remains unexplained. We do not accept that it was "impossible for [the Appellant] to make the application" prior to 18 December 2022. Even after being told by the Respondent's solicitors about the 21-day time limit, the Appellant took a further 23 days to file the application. This delay is also unexplained.

2. Finally, the Deputy President's conclusion, that the Appellant's reasons for the delay did not amount to exceptional circumstances under s.394(3) was open to him on the evidence before him. Further, the Deputy President applied an orthodox approach to the matter before him and we cannot discern any error with his approach or findings.

[44] Having considered the Appellant's submissions and the materials filed on appeal, we have also considered whether this appeal attracts the public interest. In this matter, what are said to be grounds of public interest are all personal to the Appellant. They do not establish that there is any public interest in the matter.

[45] For the avoidance of doubt, we are not persuaded, for the purposes of s.604(2), that:

• (i) there is a diversity of decisions at first instance such that guidance from an appellate body is required of this kind;

• (ii) the appeal raises issues of importance and/or general application;

• (iii) the Decision at first instance manifests an injustice, or the result is counter intuitive; or

• (iv) that the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.

[46] For the reasons set out above, the Full Bench is not satisfied that the Appellant has demonstrated an arguable case of appealable error or that it would be in the public interest to grant permission to appeal pursuant to s.604(2) of the Act.

[47] Permission to appeal is refused.

[3] Transcript, 8 February 2023, PN145-152.

[4] Transcript, 8 February 2023, PN153-166.

[5] Transcript, 8 February 2023, PN167-172.

[6] Transcript, 8 February 2023, PN173-175.

[8] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

[9] Also see CFMEU v AIRC [1998] FCA 1404; (1998) 89 FCR 200; and Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481.

[10] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[11] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]- [27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].

[12] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[14] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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