TERMINATION OF EMPLOYMENT – extension of time – s.394 Fair Work Act 2009 – two applications for relief from unfair dismissal – both applicants claimed they were dismissed by respondent – respondent claimed applicants abandoned employment – applicants were offered new contracts with reduced wages, neither of which was signed – applicants have limited English language skills – applicants informed through interpreter on 31 May 2016 that unless contract was signed they were not to attend work the following day – applicants have not attended work since – applicants claimed they were awaiting instructions from the respondent to return to work – respondent claimed to have posted letter on 7 June 2016 requesting the applicants to explain their absence and advised that if no explanation is received their absence will be considered as an act of termination of employment – Union representative sent email to respondent on 10 June 2016 seeking to reimburse applicant’s lost wages and advise when they can return to work – respondent responded that they would look into it – respondent sent second letter to applicants on 13 June 2016 requesting an explanation for their absence – applicants claim that had not received both letters – applicants became aware that their employment had terminated on 4 August 2016 while pursuing claims for lost wages against respondent in WAIRC – subsequently applicants made unfair dismissal applications on 18 August 2016 – Commission satisfied applicants were not aware that respondent had considered them to have abandoned employment – doubt as to whether letters and other correspondence were received by the applicants – satisfied that even if letters were received, applicants possessed limited English language skills to read and respond to – satisfied that applicant’s legal and union representative were not aware of the letters and that their client’s employment had been considered terminated – Nulty considered – Commission satisfied that only communication to applicants in Chinese was text of 31 May 2016 – found that even if dismissal took effect from 31 May 2016, respondent took no action to provide the applicants with their final wages or separation certificate – found it unusual that respondent ignored union representative and only advised applicant’s lawyer that they considered the applicants to have abandoned employment four weeks after receipt of application to the WAIRC – satisfied exceptional circumstances existed – extensions of time granted. Liang and Anor v H’VAR Steel services
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