s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - migrant worker - assistance from a friend - feelings of demotivation - whether exceptional circumstances - extension refused - application dismissed

• [1] On 3 November 2024, Mr Han Yang (Mr Yang or the applicant) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy in relation to a dismissal by Raystech Group Pty Ltd (Raystech, the respondent or the employer) which took effect on 6 September 2024.

• [2] The application is thirty-seven days outside the statutory 21-day period for making unfair dismissal claims. Mr Yang seeks an extension of time. The respondent opposes an extension.

• [3] This decision determines that question.

• [4] I issued directions on 15 November and heard the extension of time issue by video on 21 November 2024.

• [5] Mr Yang and Raystech were self-represented (Mr Yang assisted by a Mandarin interpreter).

• [6] I heard evidence from Mr Yang and a person called by him, Mr John Sheehan. The facts relevant to the extension of time issue are largely not in dispute.

• [7] Raystech, an energy wholesale distributor, operates a distribution warehouse at Wingfield in suburban Adelaide.

• [8] Mr Yang is a migrant who arrived in Australia in March 2023 and commenced working as a warehouse employee in October 2023.

• [9] His employment was terminated for cause by written notice on 30 August 2024, effective 6 September 2024. The notice alleged that he was dismissed for making "multiple mistakes and complaints".[1]

• [10] Mr Wang worked out the notice (though he was absent on personal leave from the afternoon of 2 September until 6 September inclusive). His last day of employment was 6 September 2024.

• [11] At the time of being given notice, and in the week that followed, Mr Yang did not inform Raystech that he considered his dismissal unfair. Whilst in his own mind he disagreed with the reasons for the dismissal, he took the view that a decision had been made and it was not worthwhile discussing the matter with the employer. He did however ask about his final entitlements and questioned why accrued sick leave was not going to be paid out.

• [12] On the weekend after his employment ended (7 and 8 September), Mr Yang spoke to a friend with whom he shares a house (Mr Sheehan) about his dismissal. Mr Sheehan had no specialist expertise in employment matters but told Mr Yang that he would make some inquiries on his behalf.

• [13] On 8 September, Mr Sheehan communicated with a specialist workplace adviser. The adviser needed some further information. Mr Sheehan obtained that further information from Mr Yang. On 9 September the specialist adviser, by return email, informed Mr Sheehan that there would be costs, and relayed some uncertainties with Mr Yang's case ("not good news John but that is the reality of the situation"[2]). He also informed Mr Sheehan in writing that a claim had to be made within 21 days.[3]

• [14] On 10 September 2024, Mr Sheehan forwarded the email of advice from the specialist adviser to Mr Yang.[4] Mr Sheehan did not specifically draw to Mr Yang's attention the 21-day requirement mentioned in the advice because he himself had not appreciated the importance of that information.

• [15] Mr Sheehan also sought the views of a second person (not a workplace specialist). On 9 September that second person told Mr Sheehan by return email that the prospects were negative and that "it is too costly to challenge".

• [16] Mr Sheehan also forwarded that email to Mr Yang on 10 September.

• [17] In the month that followed, Mr Yang periodically spoke informally about the dismissal with Mr Sheehan but did not ask him to, nor did he, take further specific action.

• [18] According to Mr Yang's evidence, their last informal communication about the issue was in about mid-October 2024.

• [19] Mr Yang felt demotivated by the dismissal. He started looking for other work soon after being sacked. However, even by late October 2024, he continued to believe the dismissal was unfair.

• [20] At his initiative, on 3 November 2024 he searched the internet to explore his rights. He had not personally done so prior to then. He discovered that dismissed employees have rights to make unfair dismissal claims. He then went onto the Commission's web site and, acting alone, populated an unfair dismissal application and lodged it online at 12.44pm.

• [21] In his application Mr Yang stated that he was filing outside the 21-day requirement. His evidence was that reading the application form on 3 November was the first time he became aware of the 21-day rule. His evidence was that he had not read the earlier information provided by the specialist adviser to Mr Sheehan (including about the time limit) because, even though it had been sent to him, he had been demotivated.

I was trying to report the unfair event in a proper time.

And I had consulted a representative to help me. I mentioned I want to report the unfair. But the communication with the representative misleading me not to do the report on the time frame.

I do wanted to report the unfair once I knew I am eligible to report it in the first time."

• [23] In summary, Mr Yang submits that he is a lay person who sought to be informed of his rights, asked a friend for help because he was unsure and felt demotivated, and made a claim once he knew that he was able to do so.

• [24] Raystech submit that an extension should not be granted because there are no exceptional circumstances.

• [25] Unfair dismissal applications are required to be filed within twenty-one days of a dismissal taking effect. However, s 394(3) of the FW Act provides:

(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:

(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

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

• [26] The application can only proceed if the applicant can establish that "exceptional circumstances" exist within the meaning of s 394(3).

• [27] An applicant for an extension of time has an onus to adduce evidence in support of matters which the applicant asserts constitute exceptional circumstances.[5]

• [28] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[6] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[7]

• [29] I apply s 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[8]

• [30] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[9]

• [31] It is not in dispute that Mr Yang's application is thirty-seven days out of time (7 September being day one of the 21-day count).

• [32] I now consider each of the factors in s 394(3).

• [33] The reason for delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[10] The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, though it is ultimately a question of degree and insight.[11]

• [34] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.[12]

• [35] The period of delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for delay is acceptable or credible.[13]

• [36] I now deal with each of the reasons advanced by Mr Yang.

• [37] In his evidence, Mr Yang stated:[14]

"I am a new migration came to Australia in March 2023. The occupation in Raystech is my first formal job in this country. When I received the termination email, I was very surprised. And I am an introverts and usually social anxiety, I was struggling to think about the unpleasant experience. And in the unfamiliar environment, both in language, legislation and culture. I have a difficulty to be conscious what is going on and what should I respond. Luckily, I am friendly and I have friends grew up here. My friend John Sheehan encouraged me to report this unfair termination. And he helped me to consult a representative how to report this unfair dismissal. I am sure I want to uphold the justice, not just for me but for everyone live here when I notice I was unfairly treated. I believe there was a sort of communication issue between me, my friends and the representative which leaded the delay."

• [38] I distil from this statement and the oral evidence led at the hearing that Mr Yang relies on two reasons:

• that a "communication issue" existed between he and his friend who had advised him to make a claim; and

• that Mr Yang, as a relatively new migrant, was unfamiliar with Australian law or the exercise of employment rights.

• [39] Neither of these explanations are persuasive either individually or collectively.

• [40] Mr Yang did obtain assistance from a lay friend, Mr Sheehan. That assistance came in the form of Mr Sheehan communicating with two persons, one of whom was a specialist workplace adviser. The information provided to Mr Sheehan was received in the week following Mr Yang's dismissal taking effect and was promptly communicated by Mr Sheehan to Mr Yang.

• [41] I do not find that a communication breakdown existed between Mr Yang and Mr Sheehan, let alone one that explains the delay. Mr Sheehan sought the necessary information from Mr Yang, he provided that information, and it was then relayed to and informed the advice from the workplace specialist. The advice was not expressed in overly legalistic language. It was made known to Mr Yang who, according to his evidence, chose not to closely read it. Had he done so he would have learned, within a week of being dismissed and well before 3 November, that a 21-day time limit applied, amongst other matters.

• [42] The reason Mr Yang did not read the advice was not that it was incapable of being understood or that it had not been well communicated, but rather due to his feelings of demotivation. Mr Yang put it this way in his evidence:

"I was unhappy and not willing to face the reality of the matter"[15].

• [43] Feelings of demotivation following a dismissal are not unusual. Without more, they are not an acceptable reason for delay.

• [44] Failing to read (or do so carefully) advice provided about workplace rights is also not an acceptable reason for delay.

• [45] I take into account that Mr Yang was a lay person with limited command of English, had no expertise in legal matters or in the exercise of employment rights, and that this was his first job in Australia.

• [46] However, unfamiliarity with Australian law or a lack of knowledge about the exercise of employment rights under the FW Act is not of itself unusual. Many people including, but not limited to, new migrants will not be familiar with Australian legal rights or processes. This is why a large amount of information in plain English exists both on the Commission web site and other online sites, as well as via migrant resource centres, regarding legal rights and the fair work system. As it turned out, when Mr Yang did belatedly decide to personally search his rights online two months after being dismissed he was in fact able to understand the information he discovered, populate an unfair dismissal application and lodge it.

• [47] The reasons for delay, whilst somewhat understandable for a new migrant dismissed from his first job, do not support a finding of exceptional circumstances.

• [48] Mr Yang was aware that his dismissal took effect from 6 September 2024, and of the reason.

• [50] No action was taken by Mr Yang after dismissal and before filing to put Raystech on notice that the merits of the dismissal would be litigated. Mr Yang did however question why accrued sick leave was not to be paid out.

• [52] Raystech would incur time and effort in responding to an unfair dismissal claim. That said, the prejudice to the employer has no unique features.

• [53] However, the absence of prejudice would not of itself be a reason to grant an extension.[16]

• [54] In the circumstances, this is a neutral consideration.

• [55] The merits of Mr Yang's unfair dismissal application appear to concern whether the performance errors alleged by Raystech were a valid reason and whether Mr Yang was sufficiently trained, counselled, warned or otherwise put on notice or given a chance to rectify alleged deficiencies in performance.

• [56] Not having heard evidence on these issues, it is not safe to express even a provisional view on the merits. Given this, it is not possible to give weight to Mr Yang's contention that time should be extended because he has a genuine belief of unfairness.

• [57] In this matter, this is a neutral consideration.

Fairness between persons in similar position (s 394(f))

• [58] This issue does not arise in this matter.

• [59] The thirty-seven day period of delay is significant in the context of a twenty-one day statutory time limit.

• [60] The FW Act requires the circumstances to be exceptional otherwise time cannot be extended.

• [61] Whilst in the period following dismissal Mr Yang sought assistance from a friend, that assistance was provided in a timely and non-technical manner. Mr Yang had advice about his rights and the capacity to exercise them or seek further information. He did not do so largely because he felt demotivated in the wake of having been dismissed, not because of any failing by those who assisted him.

• [62] Whilst the reasons for the delay are somewhat understandable for a relatively new migrant dismissed from his first job, they do not support a finding of exceptional circumstances.

• [63] Other factors are neutral. None weigh clearly in favour.

• [64] I do not find the circumstances to have been exceptional.

• [65] There being no exceptional circumstances, the time for lodgement of application U2024/13126 cannot be extended.

• [66] Being out of time, the application must be dismissed.

• [67] An order[17] giving effect to this decision is issued in conjunction with its publication.

S. Cheng, with M. Deng and A. Zhang assisting, of and on behalf of Raystech Group Pty Ltd

[5] Smith v Canning Division of General Practice [2009] AIRC 959

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

[7] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316

[8] [2011] FWAFB 975, [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers [2010] FWAFB 7251, [5]

[9] John Mamur v Coles Group Supply Chain Pty Ltd [2020] FWCFB 4954, [7] and [19]; Dennis Obel v Central Desert Regional Council [2021] FWCFB 167, [6]

[10] Manoj Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [30] and [36]

[11] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2019] FWCFB 3288, [35] - [45]

[12] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software [2018] FWCFB 3288

[13] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

[15] Audio recording 21.11.2024 12.21pm

[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300

[17] PR781548

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