Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Unfair dismissal - extension of time for lodging application.

[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Ms Lai King Wong (the Applicant) in respect of her dismissal by Bowl & Chopstix (the Respondent).

[2] The extension of time application was heard in Morwell on 17 July 2014. The Applicant represented herself and the owner of the Respondent business Mr Chuong represented the Respondent. An interpreter assisted as the Applicant speaks no English. I considered the evidence and submissions of the Applicant and Mr Chuong.

[3] The Applicant filed her application on 28 April 2014. The Applicant in her application form says that she was employed from 1 December 2007 until 22 February 2014. She says that she was notified on the dismissal and the dismissal took effect on 22 February 2014. If the termination took effect on 22 February 2014 then the application has been made approximately 43 days after the 21 day time period for making an application set out in the legislation.

[4] The Applicant says that she worked as an assistant chef at Bowl & Chopstix in Morwell and was responsible for food preparation, cooking, reviewing kitchen inventory and estimating what food was required.

[5] The Applicant says that there had been no issues raised concerning her performance prior to the day of the termination. However, the Applicant says that Mr Chuong was critical of her going to the toilet, taking time off to have something to eat during a shift and asking for a wage increase when she didn't speak English.

[6] The Applicant gave evidence that on Saturday 22 February 2014 she had prepared additional honey chicken but considered that there was enough lemon chicken for the next two days. The Applicant says that Mr Chuong asked her why she did not prepare more lemon chicken and she responded that there was enough for two days, that if she prepared more it would not be fresh and that the person on the next shift could do it if required. The Applicant says that Mr Chuong did not accept this explanation and told her not to come back to work.

[7] The Applicant says that she was dismissed without warning or notice.

[8] It is not disputed that the Respondent is a small business which employs four or five people. It is also not in dispute that the Applicant was employed on a full time basis in December 2007 and continued in such employment for a number of years.

[9] The Applicant says that the work started on a 7 day per week basis and was then on a six day per week basis until the final year when it was reduced to five days per week. In the final six months the Applicant says that the starting time of the work was moved forward one hour and the number of days per week was reduced to four. The Applicant provided details of another employee who she said would be able to confirm that she had been at work on 22 February 2014 because that employee had also been working on that day.

[10] It is also not in dispute that the Applicant was paid in cash on a monthly basis. What is in dispute is the date of termination of employment.

[11] Mr Chuong gave evidence that the Applicant had not worked for him for the last few years. He later gave evidence that it was not for three or four years but then subsequently could not be sure about how long it had been since the Applicant had been employed. He gave evidence that the Applicant had sought group certificates from him for recent employment so that she could get a home loan and also evidence from him about her continued employment with him.

[12] The Applicant says that at some time before February 2014 she had asked Mr Chuong for some proof about her employment.

[13] I did not find Mr Chuong to be a credible witness in respect to these matters. The details of his evidence changed on a number of occasions. Mr Chuong had notice of the requirement to provide a statement in response to the submission of the Applicant prior to the proceedings and failed to do so. He had adequate opportunity to make reasonable inquiries about the employment history of the Applicant. Yet he could provide no details, not even vague details, about these matters. I find it improbable given the small size of the business and Mr Chuong's hands on role in the business that he would not know about the employment history of the Applicant and particularly about the circumstances of the ending of the employment relationship. On the other hand I found the Applicant to be a credible witness. Where there is conflict in the evidence I accept the evidence of the Applicant.

[14] The Applicant submits that the reasons for the late application are:

● The Applicant had poor knowledge of the employment legislation and system and was unaware that she could make an application.

● The Applicant was not aware of employment rights and the system in Australia.

● The Applicant was eventually provided with assistance by her daughter who lives in Melbourne whilst the Applicant lives in Traralgon and worked in Morwell. The Applicant's daughter provided a statement.

[15] The Applicant says that she did contact her daughter on the night of the termination of her employment. The Applicant says that she was aware from her experience in Hong Kong that employers should normally give notice if they wish to terminate employment. The Applicant says that eventually she did speak to some friends and as a result she made contact with an interpreter and this led to her making the application to the Fair Work Commission.

[16] I must determine the question in accordance with Section 394(2) of the Fair Work Act 2009 (the Act) which provides as follows:

"(2) [Standard time limit] The application must be made:

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

(b) within such further period as FWA allows under subsection (3)."

[17] Subsection 394(3) provides:

"(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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_._"

[18] It is accepted that the Application was not made within 21 days of the dismissal taking effect. I must therefore consider whether or not there are exceptional circumstances taking into account the six matters listed.

[19] The inability of the Applicant to access adequate information and assistance to complete an application because she does not speak any English could constitute an exceptional circumstance. For example, if the Applicant had been seeking the services of an interpreter or other community assistance service and there were delays in this process these delays may be explained by the exceptional circumstance. However, the inability of the Applicant to access adequate information and assistance to complete an application because she does not speak any English does not adequately explain the length of the delay in the circumstances of this case. Had the total delay been shorter then I would have been satisfied that there was an exceptional circumstance which justified the reason for the delay. The Applicant did not provide any details of why there was a delay between the termination and her seeking information and or assistance about her rights. The Applicant's situation and the lack of English in particular, did provide adequate explanation as to why there might be some delay between her seeking information and assistance about her rights and being able to successfully complete an application form.

[20] This is a neutral factor as the Applicant was aware of the dismissal at the time it took effect.

[21] There is no evidence of action taken to dispute the dismissal between the time of the termination and the time of making contact with an interpreter which was some significant time after the termination. This factor does not stand in favour of a finding of exceptional circumstances.

[22] The period of delay is not so long that the employer will suffer particular prejudice. The employer has not expended any significant resources defending the allegation. There is no prejudice to the employer. This is a neutral factor.

[23] Although I have not had the opportunity to hear all of the evidence it was necessary to consider some important evidence from the key participants. This has resulted in a clear finding about the credibility of the evidence of those participants. Upon the material before me I am satisfied that there is merit in the Applicant's case and it has good prospects of success. This is a factor which stands in favour of a finding of exceptional circumstances.

[24] There is nothing before me which suggests that this is anything other than a neutral factor in this case.

[25] Taking all of the factors into consideration I am not satisfied on balance that there are exceptional circumstances warranting an extension of time. The Application is therefore dismissed.

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