Mr Huy Nguyen Ho Dinh v Meriton Property Services Pty Limited, Mr Aniket Amin

[2024] FWC 2235

[2024] FWC 2235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Huy Nguyen Ho Dinh
v

Meriton Property Services Pty Limited, Mr Aniket Amin

(C2024/4764)

DEPUTY PRESIDENT ROBERTS SYDNEY, 21 AUGUST 2024

Application to deal with contraventions involving dismissal – extension of time – application dismissed

1. On 11 July 2024 Mr. Huy (Ben) Nguyen Ho Dinh (Applicant) filed an application under s.365 of the Fair Work Act 2009 (Act) alleging that he had been dismissed by his former employer, Meriton Property Services Pty Ltd (Meriton or First Respondent) in contravention of Part 3-1, General Protections, of the Act. The application also named Mr. Aniket Amin, the First Respondent’s Hotel Manager, as a second respondent to the application.

1. The Applicant commenced employment in January 2024 and was dismissed from his position on 30 May 2024. It was common ground that the application had been filed outside the 21-day time period prescribed by s.366(1)(a) of the Act. The Applicant sought an extension of time to allow the application to proceed.

1. Subsections 366(1)(b) and (2) provide that the Commission may allow a further period for a general protections application to be made if the Commission is satisfied that there are ‘exceptional circumstances’, taking into account the following:

   (a) the reason for the delay; and

   (b) any action taken by the person to dispute the dismissal; and

   (c) prejudice to the employer (including prejudice caused by the delay); and

   (d) the merits of the application; and

   (e) fairness as between the person and other persons in a like position.

1. Directions were made for the filing of material in relation to the application for an extension of time. These included directions about the specific statutory factors, referred to above, that I would need to consider in any determination of whether I could be satisfied that there “exceptional circumstances” that might justify an extension of time. The matter was heard on 20 August 2024.

1. Each of the matters in s 366(2)(a)-(e) must be considered in assessing whether there are exceptional circumstances. I set out my consideration of each matter below.

Reason for the delay

1. In order to comply with the 21-day period specified by s 366(1)(a), the Applicant ought to have made his application by 20 June 2024. In the circumstances, his application was 21 days late.

1. The following principles have emerged from the cases and are apposite to applications under s.366. The delay referred to in s.366(2)(a) is the period commencing immediately after the 21-day period specified in s.366(1)(a) until the date when the dismissal application was lodged on 11 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances[2].

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay[3]. This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2)[4].

1. The Applicant said he applied to the Commission for an unfair dismissal remedy on 18 June 2024 which was within the 21-day time period applying to applications of that kind. He said that he received a reply from the Commission on 21 June 2024 which he responded to on 27 June when he returned to Australia from Vietnam. The Applicant said he went to Vietnam to visit family because of his harsh dismissal by the First Respondent. He was in Vietnam from 15 to 27 June 2024.

1. The Applicant said that following a discussion with Commission staff he discontinued his unfair dismissal application and applied for a refund of his filing fee which he obtained on 8 July 2024. He then lodged the present application on 11 July 2024. The Applicant said it was reasonable and fair that he took extra time to prepare the present application after the unfair dismissal matter was discontinued.

1. The Respondents said that the Applicant’s reliance on the unfair dismissal application did not adequately explain the delay and that ignorance as to the appropriate cause of action was not supportive of a conclusion that exceptional circumstances existed. They relied on a previous decision[5] in which the Commission had concluded that a delay because of a belated realisation that an earlier-in-time application may not succeed because of a jurisdictional impediment was not exceptional or even remarkable.

1. The Respondents said that the Applicant’s own evidence was that he had been contacted by the Commission on 21 June and advised that the unfair dismissal application may not be able to proceed because the Applicant did not meet the minimum employment period, but that he made no effort thereafter to file the application and waited a further 20 days before doing so.

1. The Respondents pointed out that the Applicant had filed his unfair dismissal application whilst he was in Vietnam and there was nothing to suggest that being out of the country had impeded his ability to file the present application. Further, the Respondents said that there was no medical evidence adduced in support of the Applicant’s assertion that the state of his mental health had an impact on his capacity to file the application. They said that any asserted condition clearly did not prevent the Applicant from filing the unfair dismissal application.

1. The Respondents also submitted that ignorance of the timeframe did not amount to exceptional circumstances and that there were no other uncommon events or circumstances that had been advanced as a reason for the delay.

1. The reasons for the delay put forward by the Applicant are unconvincing. Although it is true that an alternative application was made within time, this does little to explain why the present application was not filed immediately or shortly after the Applicant decided to discontinue the first application. There is no evidence on which I can be satisfied that the applicant was impeded for health or financial reasons from filing an application. Mere ignorance of the statutory time limit is not an exceptional circumstance[6].

1. I conclude that the reasons advanced for the delay do not support a conclusion that there are exceptional circumstances for the purposes of s.366(2).     

Action taken by the Applicant to dispute the dismissal

1. The Applicant disputed his dismissal on the day it occurred by notifying the First Respondent that he did not accept the decision and by filing an unfair dismissal application on 18 June 2024. This weighs in the Applicant’s favour. However, the Applicant subsequently discontinued the unfair dismissal application on or about 1 July 2024. The Respondents could have reasonably assumed that the decision to terminate the Applicant was no longer being challenged from that point until the present application, particularly given that the 21-day time period had by then elapsed. On balance, I conclude that the initial steps taken by the Applicant weigh in his favour, but only very marginally given the subsequent discontinuance and the period that elapsed before a further challenge to the decision materialised.

Prejudice to the employer (including prejudice caused by the delay)

1. I do not find that any material prejudice would be suffered by the Respondents if an extension of time were granted. The mere absence of prejudice is not, of itself, a basis to conclude that exceptional circumstances exist[7]. I regard this as a neutral factor in this case.

Merits of the application

1. The Applicant disputed the performance and conduct concerns that Meriton put forward as the basis for his termination. He also raised concerns about the procedures followed by the First Respondent in the termination process, including their failure to give warnings prior to his termination and the failure to provide him with the details of the complaints that had been made against him. The Applicant also said he had previously raised complaints about two other co-employees.

1. The Respondents submitted that the matters raised by the Applicant were properly matters to be tested in unfair dismissal proceedings as they went to the questions of whether there was a valid reason for the termination and whether the Applicant had been accorded procedural fairness. They said they were irrelevant to general protections claims of this kind. Further, the Respondents provided evidence that there had been no complaints or whistleblower-type actions on the part of the Applicant and that his termination was purely related to his unsatisfactory performance. Further, the Respondents submitted that none of the matters raised by the Applicant identify the alleged infringement of any other workplace rights within the meaning of s.341 of the Act. These include not being informed of the complaints made by others, not receiving warnings and the publication and removal of the Applicant’s June roster before his termination meeting.

1. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter ins.366(2)(d).”[8] Having regard to the available material and making allowances for the fact that the Applicant is self-represented, it is difficult to see a clear basis for a successful general protections application. At its highest, if the Applicant were able to establish that he had raised complaints with an appropriate entity and that this had contributed to the reasons for his termination, this may give rise to a contravention. The evidence here however was very limited and is certainly insufficient to draw a conclusion that positively favours the Applicant. I regard the merits of the claim as neutral in the overall assessment.

Fairness as between the person and other persons in a like position

1. The Respondents submitted that this case bore some similarities to the case of Jordan and that the application of consistent principles in cases of a similar nature[9] meant that the Commission should ultimately conclude here, as it did in Jordan, that there were no exceptional circumstances. The Respondents pointed out that in Jordan the applicant acted on the same day to file a general protections application whereas there had been a considerable delay in filing in this case.

1. There are factual differences and similarities between situation of the applicants in the two matters. I also note that the ultimate conclusion as to whether or not exceptional circumstances exist involves a weighing of a number of different considerations, not simply the issue of fairness between an applicant and another person. Nonetheless, I do not think fairness considerations here favour the Applicant given the additional time he took to file the present application. I conclude that this weighs against a conclusion of exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. Exceptional circumstances may 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 can be considered exceptional.[10]

1. Having regard to the matters listed at s 366(2) of the Act and my findings above, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.

Conclusion

1. Given that there are no exceptional circumstances, there is no basis to allow an extension of time.

1. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr. Huy (Ben) Nguyen Ho Dinh on his own behalf.
Ms. Katherine Jenkins for the Respondents.

Hearing details:

2:00 pm (AEST) on Tuesday, 20 August 2024 at the Fair Work Commission in Sydney.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Ibid at [40].

[4] Ibid at [39].

[5] Jordan v. Arrow Worldwide Pty Ltd[2023] FWC 1931

[6] Nulty v. Blue Star Group Pty Ltd[2011] FWAFB 975, (2011) 2013 IR 1 at [14] per Lawler VP, Sams DP, Williams DP.

[7] Ozsoy v. Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [39].

[8] Nulty op cit at [36].

[9] Perry v. Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 at [41].

[10] Nulty op cit at [13]

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