Li v Rayna Pty Ltd [2006] NSWIRComm 1118

Industrial Relations Commission of New South Wales

CITATION: Li v Rayna Pty Ltd [2006] NSWIRComm 1118

APPLICANT Dasheng Li PARTIES: RESPONDENT Rayna Pty Ltd

FILE NUMBER(S): 4740 of 2005

CORAM: McLeay C

CATCHWORDS: Unfair dismissal - accountant - delay due to proceedings elsewhere - application accepted out of time - allegations of criminal conduct - allegations not proved - applicant claimed constructive dismissal - credibility of witnesses - case not made out - aplication dismissed

Industrial Relations Act 1996 LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

CASES CITED: Allison v Bega Valley Council [1995] NSWIRComm 175 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273

HEARING DATES: 27/04/06, 05/07/06

DATE OF JUDGMENT: 07/26/2006

APPLICANT Mr Dasheng Li appeared unrepresented

LEGAL REPRESENTATIVES: RESPONDENT Mr S Bliim of counsel Mr C Cheung, solicitor Keith Chow & Co

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MCLEAY C

26 July 2006

Matter No IRC 4740 of 2005

Dasheng Li and Rayna Pty Ltd

Application by Dasheng Li re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1118

1 This is an application by Dasheng Li ("the applicant") for unfair dismissal by Rayna Pty Ltd ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The application shows that Mr Li was dismissed from the position of accountant on 24 August 2004, having commenced work with the respondent on 17 June 2003. 2 Mr Li had become concerned that he had been asked to maintain the accounts in a way that he felt was wrong. On 3 June 2004 Mr Li reported the respondent to the Australian Taxation Office ("ATO"). Prior to this, he had warned workers in the factory that they should declare their incomes to the ATO, as he said they had been paid cash in hand without any deductions for taxation. 3 A series of events followed in which Mr Li had various discussions with Raymond Chen, a former director of the respondent company, and his wife Nina Chen, the sole Director during the relevant period. These events culminated on 1 September 2004 when Mr Li was arrested and charged with extortion under s 100A of the Crimes Act. The decision of Magistrate Longley was handed down in the Local Court on 26 August 2005, at which time the charges were dismissed. 4 Whilst Ms Chen was the sole Director of the respondent company, her husband Mr Chen had delegated responsibility for the day-to-day affairs of the company in his role as Manager. Application lodged out of time 5 Mr Li filed his application for unfair dismissal on 9 September 2005. Section 85 of the Act provides, in subsection (3), that: The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 6 The application was made one year and 16 days after the date of the alleged dismissal, being almost one year out of time. The reasons given for the delay were the charges against the applicant and proceedings in the Local Court. Mr Li was charged just one week after his dismissal and his application was filed eight days after those charges were dismissed. There was no argument by the then representative for the respondent Mr Blim of counsel, as to hardship. 7 During the hearing of this matter on 26 April 2006, I set out my consideration of the relevant issues and found that there was sufficient reason to accept the application out of time. Arguments about evidence