UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00574

DELIVERED : FRIDAY, 12 November 2021

FILE NO. : U 64 OF 2021

Applicant

AND

XU HONG BIN

Respondent

CatchWords : Industrial Law (WA) – Unfair dismissal – Termination of employment – Casual employment – Whether applicant resigned or was dismissed – Abandonment of employment – Failure to attend at work – Application accepted out of time – Dismissal harsh, oppressive and unfair – Compensation for injury and loss of wages

Legislation : Industrial Relations Act 1979 (WA)

Minimum Conditions of Employment Act 1993 (WA)

Workers' Compensation and Injury Management Act 1981 (WA)

Fair Work Act 2009 (Cth) 

Result :  Extension of time granted

  Application upheld

Representation:

Applicant : Ms Y Li, on her own behalf

Respondent : Mr H.B Xu, on his own behalf

Case(s) referred to in reasons:

Archer v Starick Services Inc [2014] WAIRC 00314; (2014) 94 WAIG 498

Bogunovich v Bayside Western Australia Pty Ltd. (1998) 79 WAIG 8

Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299

Gilmore v Cecil Bros, FDR Pty Ltd and Cecil Bros Pty Ltd (1996) 76 WAIG 4434

JL v Haydar Family Restaurant T/A McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107

Richards v GB & G Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117

The Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385

Wiseman v Hills Industries Limited [2001] WAIRC 03577; (2001) 81 WAIG 2622

Reasons for Decision

Introduction

1         As at 17 June 2021, Ms Yan Li was employed as a massage therapist at the respondent's business "Mass Age Massage" (the Business). She had been employed at the Business for around one and a half years. She started working one or two days per week. By June 2021 she was working four to five days per week.

2         On 19 June 2021, Ms Li received a text message from the respondent, Mr Xu, which she alleges had the effect of terminating her employment.

3         On 17 August 2021, Ms Li commenced these proceedings, referring her claim that she had been harshly, oppressively or unfairly dismissed from her employment to the Western Australian Industrial Relations Commission (WAIRC) pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (WA) (IR Act). Ms Li seeks compensation for lost wages and for distress and humiliation. Her application was filed 30 days out of time.

4         Mr Xu opposes the grant of an extension of time and denies there was an unfair dismissal. Mr Xu says that Ms Li resigned of her own volition, and if she did not resign voluntarily, that her conduct justified termination of the employment.

5         The WAIRC must decide whether to grant an extension of time, and if yes, whether Ms Li was dismissed or whether she resigned voluntarily. If Ms Li was dismissed, the question is then whether the dismissal was harsh, oppressive or unfair.

6         For the reasons that follow, I consider Ms Li should be granted an extension of time to bring her application.

7         Being satisfied Ms Li did not resign, I also declare that the dismissal by the respondent on 19 June 2021 was harsh, oppressive and unfair and order that the respondent pay to Ms Li compensation for injury in the sum of $1,500 and for loss in the sum of $2,854.16.

Ms Li's evidence

8         Ms Li gave her evidence through a Mandarin interpreter.

9         Ms Li says she started working for the Business in late 2019.

10      Ms Li described being paid on a commission basis for each massage performed. Her income varied, but she thought it averaged around $1,200 gross per week for a five-day week. She did not think she was eligible for paid sick leave.

11      Because of the commission‑based payment arrangements, it was important to her that customers were fairly allocated amongst the massage therapists. The system was that the receptionist, when working, had the ultimate say on allocations. According to Ms Li, the receptionist did not always allocate work fairly.

12      Ms Li alleges that the receptionist engaged in bullying towards her, including pushing her in the presence of customers on 31 May 2021. She said that she had injuries to her shoulder as a result of the incident. She reported the incident to Mr Xu, who told her to report the matter to the police. She did so, but says that Mr Xu did nothing else to address her complaint against her co-worker, and in particular to resolve the source of the dispute with her co‑worker, which was the appointment allocation system.

13      On Thursday, 17 June 2021, Ms Li started work as normal in the morning. During the course of the day, she had a customer come in for a 40‑minute massage. She was allocated that customer, and proceeded to accompany the customer to a massage room. When the customer was settled, she went to retrieve some massage oils, when Mr Xu directed her not to treat the original customer, but to wait and treat a different customer who had come in later than the first customer, for a 90‑minute massage.

14      This caused Ms Li to become upset. She perceived this reallocation to be unfair to her, saying her work had been "snatched". She started to feel physically ill, including having tightness in her throat so she was unable to talk, and she felt on the verge of crying. She collected her bag and left work. She said that was at around 2:00 pm. She spoke briefly to Mr Xu complaining about the job scheduling before she left.

15      In cross-examination by Mr Xu, Ms Li conceded that she did not inform anyone at the Business that she was unwell before she left on 17 June 2021. She said she did not tell anyone because the other employees were busy with customers and because she was trying hard to compose herself and not break down in tears.

16      Ms Li did not attend work on Friday, 18 June 2021. She saw her GP and obtained a medical certificate certifying her unfit for work for a week. She sent a text message to Mr Xu, attaching the medical certificate as an image. In her text message, which was in Chinese Hanzi, she stated:

Good morning. Since I started working in your store I never thought that all this would happen. "Chinese people are their own people and harm their own people" is not a legend. In the past, I encountered unfair shift work. I will complain to you, seek to solve the problem, and evaluate the right and wrong of what happened. If I am not wrong, I need the other party to apologize to me to ensure that it will not happen again in the future. Instead of solving the problem, the result was more serious and frequent retaliation. If you told me at the beginning that there was no shift order in your store, maybe I would have changed my mind and stayed or left this job. At least I wouldn't suffer more unfair treatment, or even violence and forced work. Until Thursday afternoon, you did the same thing yourself which really hurt people. I still hope you can deal with it correctly and give me an answer.

17     On 19 June 2021 she received a text message from Mr Xu. The text was in Chinese Hanzi. The text message which was part of Exhibit A3 was translated by an interpreter during the hearing. The interpreter translated the original message as:

About the thing that you had a argument with your colleague, it happen three or four times that you grabbed your bag and left. No company would tolerate that behaviour. What happened on Thursday was you deliberately left this job and basically without saying goodbye. Everyone knew about this.

[line missing in Exhibit A3]

Hand[character], no need to harm each other. There will be opportunities that we meet each other in the future. I will give you what I promised to you next week and I won't answer the rest. I've been cooperating with you. Before you got your PR you've been taking cash (there is a list written by you), afterwards to get the government allowances fewer working hours were declared using the qualification purchased to work. It's okay if everyone lives peacefully but if there is a dispute even if I have made mistakes you are actually deceiving the government and the Immigration Department and you will be responsible for the court and the lawyers' fees. What I can do is if I'm not attacked

[line missing in Exhibit A3]

18      Exhibit A3 containing the text message was incomplete. Ms Li’s unchallenged evidence was that the missing lines translated as follows:

First missing line: "If you have different ideas, you can breakup peacefully and friendly".

Second missing line: "don't mention it at all".

19      Ms Li has not since returned to work. She says she has been unwell and unable to work. She has made a Workers' Compensation Claim but as at the date of the hearing, liability for her claim had not been admitted.

Mr Xu's evidence

20      Mr Xu gave evidence through a Mandarin interpreter.

21      He puts Ms Li's date of commencement of work at 25 November 2019.

22      Mr Xu said that the Business was a busy one and that the massage therapists are all generally pleased with both the appointment allocation arrangements and the pay arrangements. He said that the payment of massage therapists on a percentage/commission basis was common in the industry, and that the commission rate paid by the Business was favourable in comparison with its competitors.

23      According to Mr Xu, Ms Li's hours were not fixed, but varied depending on trade volume, and Ms Li's availability. For example, he said she did fewer hours when she started studying English at TAFE.

24      Mr Xu recognised the importance of having an allocation system that suited both customers and staff. In this regard, he said it was not only important to ensure that appointments were allocated rotationally, but also that the nature of the service sought by the customer matched the skills and qualifications of the massage therapist. For example, if a customer came in for remedial massage, a remedial massage qualified massage therapist (which Ms Li was), had to be allocated to that customer, even if another massage therapist was next in turn.

25      Mr Xu also said that while he acknowledged that Ms Li had expressed that she did not agree with the appointment allocation system, this was only her opinion, and most employees were happy with it.

26      Mr Xu said that he took Ms Li's claims she had been bullied seriously, but that because she had reported being assaulted on 31 May 2021, that was a serious matter which he felt was best dealt with by police. The police told him that they investigated her claims that she was assaulted, but that the co‑worker had denied it and the customer they spoke to said they had not seen anything. On that basis, Mr Xu doubted Ms Li's version of events, and felt that he could do no more about it.

27      Mr Xu's recollection of what happened on 17 June 2021 was that a customer which Ms Li had originally been allocated had returned to her car to collect something. That customer was booked for a remedial massage, and Ms Li was qualified to provide remedial massage. A second customer arrived in the meantime. He directed Ms Li to wait for the first customer to return, and allocated the second customer to another employee. He recalled that Ms Li was aggrieved by that as she wanted to treat the second customer, and not wait. She refused to serve the customer and told him "It's unfair, I have no will to do any more". She then left the workplace with her bag.

28      Mr Xu conceded in cross-examination by Ms Li that he did not have a clear recollection of what happened on the day, and could not rule out that Ms Li had already brought in a customer and was fetching the oil when he gave her the relevant contentious direction.

29      Mr Xu told the WAIRC that when Ms Li walked out on 17 June 2021 he regarded that as being her resignation. He did not try to talk her out of it, and accepted that she was resigning. He said that was the third time Ms Li left work early without approval or a reasonable excuse, the other two occurrences being on 22 March 2021 and 31 May 2021. He said that on the other occasions, Ms Li said she was resigning but agreed to go back to work after Mr Xu spoke to her.

30      Mr Xu said that when he received Ms Li's text on 19 June 2021, he found it to be aggressive and disrespectful. He considered it inappropriate that she raised her co‑workers' ethnicity as an issue. He conceded he received the attachment to the text message, but did not open or view it because he considered it unsafe to open an attachment which could be corrupted or a scam. In any event, because he considered Ms Li had resigned, he did not think there was any need to open the attachment. He therefore insisted that he did not know of the medical certification.

31      Mr Xu accepted that he sent the text message referred to at [17] above to Ms Li on Saturday, 19 June 2021.

32      Mr Xu tendered copies of several payslips showing the payments that had been made to Ms Li during her employment. The payslips show varying amounts per week were paid to Ms Li, and the payments were comprised primarily "Bonus/Commission". The payslip for the period ending 20 June 2021 shows Ms Li was paid $36,087.75 gross for the year to date, plus superannuation. It therefore appears that her pay was not $1,200 per week on average, but averaged $713.54 per week and that her hours varied from 20 to 35 per week.

33      Mr Xu said that Ms Li had lodged a Workers' Compensation Claim in which she alleges the incident on 31 May 2021 caused her to suffer depression and become unfit for work. He said he has been addressing the Workers' Compensation Claim in a genuine manner. He said he is "neutral" in relation to whether or not Ms Li was bullied on 31 May 2021 and the merits of her Workers' Compensation Claim.

Other witnesses

34      Mr Xu led evidence from two other employees, Ms Wipa Chanmee and Ms Shunhua Yin. Both gave their evidence by telephone.

35      Ms Chanmee speaks Thai as her first language. Her evidence was given in English, with some limited assistance with the interpretation of questions from her husband. She confirmed that:

(a) she saw Ms Li crying on 31 May 2021 but did not see what happened to cause her to cry;

(b) on 17 June 2021, she overheard Ms Li talking in a complaining way, although she either did not hear or did not understand her precise words or what she was complaining about (presumably because Ms Li was speaking in Mandarin). She saw Ms Li leave and confirmed that Ms Li said nothing to her on that day about why she was leaving nor that she was unwell. From what she could see, Ms Li was not sick on that day because she was at work and working until just before she left.

36      Ms Yin gave evidence in Mandarin via the interpreters present in the hearing. She confirmed that on 17 June 2021, she understood that Ms Li (who she knew as Amy), was on top of the waiting list and was supposed to be the next person to serve or treat a customer. She said that one customer arrived seeking a 90‑minute massage, and another arrived for a 30‑minute massage. Mr Xu directed Ms Li to do the 90‑minute massage, but Ms Li wanted to do the 30‑minute customer and was upset by Mr Xu's direction. She went to the back of the shop and was complaining, and then went to talk to Mr Xu. She said Ms Li then grabbed her bag and left. She looked very unhappy and angry but did not say anything about why she was leaving.

37      In cross-examination by Ms Li, Ms Yin confirmed that she did not know in what order the two customers arrived, only that there were two customers and Ms Li was upset about the one she had been allocated. However, she also said that she did not consider there was anything unusual about the manner of allocation, that it was in accordance with the normal sequence, and confirmed that the allocation arrangements, in her opinion, worked well. No one else has complained about the system.

38      Before turning to consider the issues that must be decided in this case, I wish to make the observation that both Ms Li and Mr Xu gave their evidence and participated in the proceedings in a cooperative, open and frank manner in circumstances where the hearing of the matter was made more complex by the fact that English is their second language, they were both unrepresented, and participated with interpreters. No issues of credibility squarely arise in this case, but I do want to give credit to Ms Li and Mr Xu (and the interpreters) for their sensible approach which made the conduct of the matter easier than it might otherwise have been.

Was there a dismissal or did Ms Li resign?

39      The first issue that must be determined is whether there has been a dismissal for the purpose of s 29(1)(b)(i) of the IR Act, that is, was there some action on the part of Mr Xu which lead to or effected the termination of Ms Li's employment: JL v Haydar Family Restaurant T/A McDonalds [2003] WAIRC 09489; (2003) 83 WAIG 3303 at [60].

40      There will not be a dismissal if Ms Li resigned or ended the employment by her own will.

41      Determining whether Ms Li resigned, or whether Mr Xu terminated her employment, requires close consideration of Ms Li's conduct and words on 17 June 2021 and the text messages exchanged in the following 2 days. The relevant conversations were spoken and written, respectively, in Mandarin and Chinese Hanzi. I am conscious that when assessing words and conduct for an indication of something that brought the employment to an end, subtle differences in language can convey significant differences in meaning. Where language is interpreted into another language, there is a real risk that nuances of meaning are not conveyed or inadequately conveyed. In other words, there is a risk of my misconstruing the effect of the original words viewed objectively.

42      There was no challenge to Mr Xu's account of Ms Li having said words in Mandarin before leaving work on 17 June 2021 to the effect that she had no will to work or no will to do any more. Allowing for the fact that this may not be the most precise translation of her actual words, did her words and actions amount to a resignation?

43      There are several features of this particular employment relationship that indicate if there was to be a resignation, it would likely take the form of an informal, verbal resignation. It might not be expected to be formulated using the word "resign". For instance, there was no written employment contract. The hours worked varied from time to time and, it seems, at short notice. The employment was therefore likely to be casual employment and so without a requirement for any particular minimum period nor form of notice of termination. All of these features are relevant context for determining, objectively, whether Ms Li's words and actions amounted to a resignation. These are all factors which explain both why the conduct could be a resignation and why it might have been reasonable for Mr Xu to believe that Ms Li had "left this job".

44      Having said that, I do have some reservations about whether Mr Xu in fact believed Ms Li had resigned. That is because, on his own evidence, Ms Li had left work on two or three previous occasions before completing her shift, but had continued in employment. Mr Xu did not point to anything about the 17 June 2021 occasion which should lead to the consequences being different to what they had been in the past.

45      There are also circumstances which indicate that Ms Li did not intend to resign on 17 June 2021. First, it is beyond doubt that Ms Li was unwell on 17 June 2021. I do not accept that her failure to have told Mr Xu and her work colleagues that she was unwell undermines the credibility of her evidence that she was in fact unwell. She saw her GP the next day, 18 June 2021, and her GP certified her as unfit. The nature of her illness was such that it was unlikely to have been capable of being visibly observed by Mr Xu or her work colleagues. The nature of her illness also provides a reasonable explanation for why she did not tell her colleagues that she was unwell. As an aside, I note that there is no requirement for an employee to advise their work colleagues if they are unwell. Ms Li's illness was no one's business but her own and her employer's to the extent that it impacted on her ability to do her work.

46      Accepting that Ms Li was unwell means that it is unlikely that she had in mind resigning from her employment. Being unwell, it is likely that she was focused on leaving the workplace to recover, and seek medical treatment. That was her purpose when leaving the workplace. It is unlikely that she was then considering the significant and serious step of ending the employment relationship.

47      It is common ground that Ms Li did not say goodbye to her work colleagues or give notice of her intentions to her employer when she left the workplace on 17 June 2021. If her actions and words on 17 June 2021 were intended by her to bring about an end to the employment such that she would not see her work colleagues again, it would be expected that she would say something in parting. I consider the fact she did not do so indicates that she did not intend that day to be her last working day.

48      Finally, but most tellingly, Ms Li's text message to Mr Xu of 19 June 2021 is inconsistent with her having intended to resign. Her text message attached the GP's medical certificate certifying her unfit for work for one week. Had she considered that the employment had been ended by her, there would be no reason for her to provide Mr Xu with a medical certificate.

49      I find that Ms Li did not intend to resign from her employment.

50      From the finding that Ms Li did not intend to resign, I also conclude that Ms Li's words and conduct on 17 June 2021 did not amount to a resignation or bring the employment to an end.

51      I am conscious that my reasoning in this regard might appear to place primacy on Ms Li's subjective intention rather than the effect of her actual words, objectively assessed. While I acknowledge this is not ideal, I find it is necessary in light of the fact that I am considering the words as interpreted rather than as they were spoken. As I have said, it is not possible for me to attribute a precise meaning to the Mandarin words Ms Li spoke, as they only approximate "no will to do anymore". From the finding that Ms Li did not intend to resign, I infer that the words she spoke in Mandarin did not objectively convey an intention to quit her job. I find that the words she spoke would reasonably be understood by Mr Xu as indicating she did not want to continue to work that day, not that she did not want to continue her employment generally.

52      Further, even taking a purely objective view of the words as strictly translated, I consider that the words are too vague to amount to the termination of the employment contract. The Macquarie Dictionary attributes 16 definitions to the word "will" including "wish or desire" as well as "to exercise the will" and "determine, decide or ordain". If what Ms Li was expressing was simply that she did not wish to work, that is short of being a decisive act to end an employment relationship.

53      It follows from the finding that Ms Li did not resign that there was a dismissal.

54      Mr Xu's text message to Ms Li of 19 June 2021 did not expressly state that Mr Xu was ending the employment. However, it referred to finalising payment of what Mr Xu owed to Ms Li the following week. It also contained allusions to consequences if Ms Li created conflict: in other words, veiled threats in the event Ms Li did not "go quietly". The content of the text message could leave no misunderstanding that the employment relationship was at an end.

Was the dismissal harsh, oppressive or unfair?

55      Having concluded that there was a dismissal, I must now consider whether it was harsh, oppressive or unfair. The test is whether the right of the employer to terminate the employment was exercised so harshly or oppressively as to constitute an abuse of that right: The Undercliffe Nursing Home v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 at [386].

56      In this case, the answer to the question the test poses turns on whether Ms Li's action in leaving work on 17 June 2021 was a valid reason for terminating her employment. The defence which Mr Xu raises is essentially that Ms Li abandoned the employment, or repudiated the contract by her failure to attend at work, although he does not articulate his response in terms of abandonment or repudiation.

57      Commissioner Gregor described the concept of abandonment of employment in his decision Wiseman v Hills Industries Limited [2001] WAIRC 03577; (2001) 81 WAIG 2622 at [39] where he said:

…For abandonment to be established it must be shown that there was clear intention to do so, that intention may be evinced when the employee's absence is against the express instructions of the employer, and there is a substantial absence or where the employee has acted in a manner inconsistent with an award definition of the abandonment of employment. In Unfair Dismissal in New South Wales by Mark Baragwanath, LBC Information Services 1999, the learned author observes "...a clear indication that the employee is treating his/her employment contract as continuing, despite an absence, may have the effect of rendering the abandonment of employment a mere unauthorised absence".

58      As a casual employee, Ms Li was not entitled to the benefit of the minimum conditions for leave for illness contained in ss 19 to 22 of the Minimum Conditions of Employment Act 1993 (WA). Some protection of employment status for employees who suffer personal injury in the course of employment is provided under s 84AA of the Workers’ Compensation and Injury Management Act 1981 (WA). That section provides:

84AA. Employer to keep position available during worker's incapacity

(i) for which the worker is qualified; and

(ii) that the worker is capable of performing,

most comparable in status and pay to the position mentioned in paragraph (a).

Penalty: $5 000.

59      However, Ms Li had not lodged any claim for Workers' Compensation as at 19 June 2021. Her absence from work on 17 June 2021 was, therefore, unauthorised.

60      Nevertheless, as I have already found, Ms Li did not show a clear intention that she was abandoning her employment, or leaving work, except for the rest of the day. Ms Li's absence from work was from about 2.00 pm on 17 June 2021 until the end of that shift. It was about 8.30 am on 19 June 2021 that she provided Mr Xu with a medical certificate. She was in touch with Mr Xu within 43 hours providing an explanation for her absence. Her absence cannot be said to be substantial, nor is it unexplained. Her absence was not against any express instructions given to her and her explanation together with the inclusion of a medical certificate indicated that she was treating the employment as continuing.

61      Accordingly, I am not persuaded that Ms Li abandoned her employment. There was, therefore, no valid reason for the dismissal. I find the dismissal was, absent a valid reason, harsh, oppressive and unfair.

Should the claim be accepted out of time?

62      It is also necessary to consider whether Ms Li should be permitted to bring her unfair dismissal application out of time. Section 29(2) of the IR Act requires that a referral by an employee of a claim that she has been harshly, oppressively or unfairly dismissed from employment must be made not later than 28 days after the day on which the employee's employment is terminated.

63      The usual principles applying to consideration of an application to extend time to lodge an unfair dismissal application were summarised in the Industrial Appeal Court decision in Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683. The relevant principles are:

(a) Special circumstances are not necessary, but the WAIRC must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.

(b) Action taken by the applicant to contest the termination other than applying under the IR Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

(c) Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

(d) The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

(e) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

64      Considerations of fairness should ultimately guide the WAIRC in the exercise of the discretion to grant an extension of time. At [73] of his judgment in Malik, EM Heenan J said as follows:

…Hence, unfairness must involve, as a minimum at least, the Commission being satisfied that some prospect of success would be denied to the applicant if he could not pursue his late claim. If there is some prospect of success to be lost by denying an extension of time, it would then become necessary to evaluate the position having regard to the length of the delay, its effects upon the respondent and the public interest in the due expedition and finalisation within an acceptable period of legal and industrial processes. Fairness, in this sphere, has a legislative starting point in the choice by Parliament that 28 days is a sufficient period in the public interest for the commencement of such a claim. The longer the delay the more difficult it will be to show unfairness, but even in instances of long delay there may be particular circumstances which reveal that it would be unfair not to accept a late referral…

65      Ms Li submitted that her circumstances were analogous to those in Archer v Starick Services Inc [2014] WAIRC 00314; (2014) 94 WAIG 498 where Commissioner Harrison granted an extension of time to the applicant, observing, at [21]:

I find that there was an acceptable reason for the delay of 18 days in lodging this application. I find that the applicant was confused about which jurisdiction she should lodge an application claiming unfair dismissal. The applicant initially lodged an application claiming unfair termination in the FWC on 18 July 2013, six days after she was terminated. I find that even though the applicant was told by the respondent prior to 27 August 2013 that the application she lodged in the FWC was in the wrong jurisdiction it finally became clear to the applicant that this was the case at the conference held in the FWC on 27 August 2013. This resulted in her lodging this application that day, after this conference finished.

The merits of the application

66      In the assessment of whether to extend time, it is necessary to consider the merits of the claim and the likelihood that it might succeed if time was extended. If the claim has no merit, that is, no prospects of success, an extension of time should not be granted, and the other factors need no consideration.

67      For the reasons stated above, Ms Li's claim has merit such as to weigh in favour of an extension of time being granted.

Reason for the delay

68      Ms Li explained that she initially filed a Form F8 - General Protections Application with the Fair Work Commission (FWC) on 8 July 2021, that is, within 21 days from the date she received Mr Xu's text message.

69      On 10 August 2021, Ms Li received legal advice about her FWC claim, and that was the first time that she became aware that Mr Xu was not a national system employer and that the FWC was not the correct forum for bringing her claim.

70      Ms Li argues that it would be unfair not to accept her claim out of time because:

(a) the fact that she had lodged the FWC claim means that Mr Xu has been aware of her challenge to her unfair dismissal claim, and is not prejudiced;

(b) her confusion about the correct jurisdiction is compounded by the fact that her first language is Mandarin and she is not proficient in English, making it more difficult for her to navigate the distinction between the FWC jurisdiction and the WAIRC jurisdiction. She was also suffering from depression at the time;

(c) her knowledge of employment law in Australia is limited; and

(d) her unfair dismissal claim otherwise has good prospects of success.

71      Essentially, Ms Li did not understand the basis for the distinction between the FWC's jurisdiction and the WAIRC's jurisdiction. She did not know which system her employer was covered by.

72      Mr Xu said that Ms Li had completed training or qualifications in English and that her English skills should not be considered as part of the reasons for delay.

73      Despite his submission, I find it is likely that difficulties in ascertaining the correct jurisdiction were likely added to by her English language limitations to some degree. Her reasons are reasonable and, in my view, adequately explain the delay. Her application was lodged promptly once she was aware of the correct forum for her claim.

Action taken to contest the termination

74      Ms Li lodged a claim concerning the termination of her employment with the FWC within the 21 day period allowed by the Fair Work Act 2009 (Cth) (FW Act) for her to do so. The claim was served on Mr Xu. Mr Xu was therefore aware that Ms Li alleged that the termination of her employment was in breach of the general protections of the FW Act and that she disputed the termination. This factor favours the extension of time being granted.

Length of delay

75      Ms Li's application was lodged one month outside the statutory timeframe for commencing an unfair dismissal claim. In the scheme of things, one month is a reasonably long delay relative to the 28 day time limit within which a claim can be made under the IR Act. The delay is substantial. It cannot be described as an insignificant delay.

Prejudice to the respondent

76      Mr Xu does not submit that it has suffered prejudice because of the delay. Mr Xu does, however, point out that the factual basis for the claim as lodged with the FWC differs from what is stated in the application to the WAIRC. Specifically, he points out that Ms Li does not refer to leaving the workplace in her application to the WAIRC, but does in her application to the FWC.

77      It is difficult to see any substantive difference between the factual accounts in each application.

78      In her application to the FWC, Ms Li states:

…I felt very uncomfortable and had difficulty breathing. So I left the workplace [on 17 June 2021].

79      In her application to the WAIRC, Ms Li states:

…I then left work for that day as I felt very uncomfortable and had difficulty breathing…

80      I am not persuaded there is prejudice to Mr Xu such that it would be unjust to grant an extension of time.

Conclusion

81      After considering all the circumstances, I consider it is in the interests of fairness to extend time for Ms Li to bring her unfair dismissal application. The prejudice to Ms Li if an extension of time is not granted is significant, as she has no other recourse in relation to her unfair dismissal claim, a claim that has merit. The interests of justice are best served by the grant of leave to Ms Li to make her unfair dismissal application out of time.

Remedy

82      Ms Li does not seek reinstatement. She has made a claim for Workers' Compensation in respect of the incident of 31 May 2021 and ongoing bullying in the workplace. She has been certified unfit for work from 18 June 2021 until the date of the hearing, attributed to the incident of 31 May 2021 and ongoing bullying.

83      In light of her claims of bullying and its effect on her health, I am satisfied that reinstatement would be inappropriate.

84      Ms Li claims compensation for her loss and injury. The principles in relation to the assessment of compensation for unfair dismissal claims have been well settled in the WAIRC since the decision of the Full Bench in Bogunovich v Bayside Western Australia Pty Ltd. (1998) 79 WAIG 8, (also Gilmore v Cecil Bros, FDR Pty Ltd and Cecil Bros Pty Ltd (1996) 76 WAIG 4434 and Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299).

85      The award should compensate the unfairly dismissed employee, as far as possible, for the "loss or injury caused by the dismissal": s 23A(6) of the IR Act. An employee should be awarded a sum that he or she would have earned had the employment continued. In Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107, President Sharkey pointed out an unfairly dismissed employee is to be compensated to the fullest extent of his or her loss and that the calculation of loss must not be arbitrary.

86      It is clear that Ms Li was aggrieved by the manner in which customer appointments were allocated in the Business. In her message to Mr Xu of 19 June 2021 she said:

…If you told me at the beginning that there was no shift order in your store, maybe I would have changed my mind and stayed or left this job…

87      I understand this to mean that she would have stayed with her previous employer, or left her job with the Business voluntarily and before matters deteriorated.

88      On that basis, I find that if Mr Xu had not dismissed Ms Li on 19 June 2021, the employment would not have continued for any significant period in any event. Ms Li was likely to have resigned, most probably after securing suitable alternative employment.

89      Further, Ms Li has been unfit for work since the date of the dismissal. The cause of her incapacity was not the subject of any medical evidence before the WAIRC. The Workers' Compensation Claim was not before the WAIRC, but according to Mr Xu's unchallenged evidence, it relates primarily to the 31 May 2021 incident. On all accounts, Ms Li commenced feeling unwell, to the extent that she had to cease work, on 17 June 2021, prior to the date of dismissal on 19 June 2021.

90      It therefore seems likely that, even if Mr Xu had not terminated the employment on 19 June 2021, Ms Li would have been unfit for work for a period of time as a result of the events of and preceding 17 June 2021. As at 19 June 2021, she was certified unfit until 26 June 2021. As a casual employee, Ms Li was not entitled to receive payment for the period that she was unable to attend work due to illness.

91      I do consider it likely that, if not for the termination of her employment by text message on 19 June 2021, Ms Li was more likely to have recovered from her illness and been able to return to work. On that basis, I am satisfied she has suffered some loss. I assess her loss as four weeks' pay being a period following Ms Li's likely recovery from her illness that she would likely have continued to work before resigning. At $713.54 gross per week, being Ms Li's average weekly earnings, the amount Ms Li is to be compensated for loss is $2,854.16 gross.

92      Ms Li also claims compensation for injury. In Richards v GB & G Nicoletti [2016] WAIRC 00941; (2016) 97 WAIG 117, Her Honour Acting President Smith (as she was then) set out the relevant principles in relation to awards of compensation for injury in unfair dismissal claims at [37]:

(a) There is an element of distress associated with almost all employer initiated terminations of employment. For injury to be recognised by way of compensation there needs to be evidence that loss of dignity, anxiety, humiliation, stress or nervous shock has been sustained.

(b) Injury embraces the actual harm done to an employee by the unfair dismissal. It comprehends "all manner of wrongs" including being treated with callousness (Capewell).

(c) The injury may be manifested by the detrimental impact on the physical or emotional wellbeing of the person whose services were terminated. However, not every claim for injury need involve expert evidence of emotional trauma.

(d) The circumstances in which the dismissal from employment has been effected may be sufficient to demonstrate the injury which is experienced. Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying an award of compensation for injury.

(e) However, the Commission is not to adjust the measure of compensation according to its opinion of the conduct of the parties.

(f) The Commission must ultimately assess:

(i) Whether the behaviour by or on behalf of an employer by the termination of employment has caused injury to the employee.

(ii) If the behaviour in question has caused an injury, the gravity of the behaviour of the employer.

(iii) The level of effect or impact of the behaviour on the employee and whether the effect or impact goes beyond a level of distress that is caused by almost all employer initiated terminations of employment.

93      I am satisfied that Mr Xu's conduct in terminating the employment has caused Ms Li injury. She produced medical certification and her GP's mental health care plan indicating that she suffered adjustment disorder and was unfit for work until 9 July 2021. The mental health plan was completed on 23 June 2021. While neither the medical certificates nor the mental health care plan refer expressly to her dismissal from her employment, the proximity of her seeking medical treatment and the date of termination leaves little room to doubt the termination had an adverse impact on her mental health.

94      As for the gravity of the employer’s behaviour, the termination was effected by a text message to Ms Li. The text message was private, however it was sent to Ms Li when she was unwell. Mr Xu ought to have known she was unwell, even if he professes that he did not know or did not believe she was unwell. If he did not open the medical certificate attachment because he feared it was a scam, he made no request of Ms Li to resend it in a different form, or to ascertain if it was genuine. He ought to have known from her text message itself that she was suffering, and hurt, as she said as much in the message.

95      The lack of clarity and frankness in Mr Xu's text message was also likely to have compounded Ms Li's hurt and confusion. She had to work out from it that her employment was terminated. Further, the threats of reporting Ms Li to government agencies if she agitated any grievance reflects on the gravity of Mr Xu's behaviour.

96      It is somewhat difficult to gauge the level of impact the message had on Ms Li given that she was primarily injured by conduct at work that preceded the termination, namely the 31 May 2021 incident and the 17 June 2021 events. I am satisfied nevertheless that the level of impact is beyond that which is ordinarily associated with an employer initiated termination of employment. I would therefore award Ms Li $1,500 for injury.

97      Accordingly, there will be orders declaring the dismissal to be harsh, oppressive and unfair and for Mr Xu to pay to Ms Li compensation for injury in the sum of $1,500 and for loss in the sum of $2,854.16 within 21 days of the date of the orders issuing.

NOTE: [1], [7], [27], [30], [33], [44], [45], [47], [48], [60] and [86] amended by Corrigendum issued 23 November 2021 ([2021] WAIRC 00594).