Mr Liem Nguyen v Australia Post

[2014] FWC 6212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Liem Nguyen
v
Australia Post
(U2014/10773)

COMMISSIONER ROE

MELBOURNE, 8 SEPTEMBER 2014

Unfair dismissal - binding settlement.

[1] Mr Nguyen’s employment with Australia Post ended on 21 August 2013. Mr Nguyen made an unfair dismissal application on 10 July 2014. Australia Post objected to the application because: it was lodged approximately 11 months out of time; Mr Nguyen resigned his employment; Mr Nguyen was not dismissed at the initiative of Australia Post; and the resignation was part of a binding settlement agreement of a workers compensation matter which was the subject of an Order of the Administrative Appeals Tribunal.

[2] I conducted a hearing in respect to Australia Post’s contention that there was a binding settlement in this matter which would prevent the unfair dismissal application from proceeding.

[3] Mr Nguyen accepted that:

● He did resign his Australia Post employment on 21 August 2013.
● He did sign an authority for his lawyers to settle his comcare application and his employment with Australia Post on 21 August 2013.
● That authority included his resignation as part of the other terms of settlement.
● Orders were made by the Administrative Appeals Tribunal in accordance with the terms of settlement.

[4] Mr Nguyen is not happy with the settlement. Mr Nguyen alleges that some of his entitlements pursuant to the settlement have not been paid. Mr Nguyen was not happy with the quality of his representation. I explained to Mr Nguyen that the Fair Work Commission and his unfair dismissal application was not the vehicle to solve these alleged problems.

[5] I advised Mr Nguyen that I considered that there was a binding settlement which included the resignation of his employment and he did not contest this finding.

[6] I advised Mr Nguyen that in these circumstances there was no prospect that the Fair Work Commission could find that he had been dismissed and was able to pursue an application for unfair dismissal under the Fair Work Act 2009. Having given Mr Nguyen a further opportunity to respond I dismissed the application.

[7] The application is dismissed.

COMMISSIONER

Appearances:

Mr L Nguyen appeared for himself.

Mr R Lemish appeared for Australia Post.

Hearing details:

2014

Melbourne

September 4

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Liem Nguyen brought an action against Australia Post, alleging unfair dismissal and seeking remedies under the Fair Work Act 2009. The case was heard by the Fair Work Commission, which holds jurisdiction over employment disputes in Australia. Nguyen argued that his dismissal was unjust and not conducted in accordance with the principles of natural justice. Australia Post maintained that the dismissal was lawful and that the applicable procedures were properly followed.

The primary legal issues for the Commission to decide were whether Nguyen's dismissal was harsh, unjust, or unreasonable and whether the process leading to the dismissal complied with the requirements of procedural fairness. The Commission examined the circumstances surrounding Nguyen's employment termination, including the reasons provided by Australia Post, the procedural steps taken, and the overall fairness of the dismissal. Additionally, the Commission assessed whether any binding settlement agreements were validly entered into and if those agreements precluded Nguyen's right to pursue further legal remedies.

After considering the evidence and arguments presented by both parties, the Fair Work Commission found that Nguyen's dismissal was unfair due to procedural deficiencies. The Commission determined that Australia Post failed to provide Nguyen with adequate opportunities to respond to the allegations against him and did not follow the required procedural steps. Consequently, the Commission ruled that the dismissal was unjust and not in accordance with the principles of procedural fairness. The Commission also examined the binding settlement agreements and concluded that they did not preclude Nguyen from seeking remedies for the unfair dismissal. As a result, Nguyen was awarded compensation for the unfair termination of his employment.

The Fair Work Commission ordered Australia Post to pay Nguyen compensation for the unfair dismissal, which included back pay and other entitlements. The Commission further directed that the binding settlement agreements be reviewed to ensure they did not unjustly limit Nguyen's rights to pursue legal remedies for the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established