Mr Nung Dang v Plasmo Pty Ltd Summary

[2014] FWC 6468

FAIR WORK COMMISSION

DECISION

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

Mr Nung Dang
v
Plasmo Pty Ltd
(U2014/10719)

COMMISSIONER CLOGHAN

PERTH, 16 SEPTEMBER 2014

Unfair dismissal - out of time.

[1] On 9 July 2014, Mr Nung Van Dang (Mr Dang or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Plasmo Pty Ltd (Employer).

[2] Mr Dang states in his application that his dismissal took effect on 29 June 2012.

[3] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] For the Commission to have jurisdiction to hear and determine the matter, it is necessary for the application to be made within 14 days after the dismissal took effect, pursuant to paragraph 394(2) of the FW Act.

[5] Mr Dang has not made the application within 14 days after the dismissal took effect. However, the Commission can allow for a further period for the application to be made (that is, 9 July 2014), if it is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[6] On 14 July 2014, I issued Directions and advised the parties that I intended to deal with the issue of whether I should allow Mr Dang to lodge his application on 9 July 2014 by way of written submissions.

[7] The Applicant did not provide any submissions. The Employer provided its written submissions, as directed, on 5 August 2014.

[8] For the reason above, pursuant to paragraph 587(3)(a) of the FW Act, the application is dismissed for want of prosecution. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Respondent: 5 August 2014.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mr Nung Dang, the appellant, filed an appeal against the respondent, Plasmo Pty Ltd, seeking to overturn a decision of the Fair Work Commission (FWC) which dismissed his claim of unfair dismissal as out of time. The FWC had found that Mr Dang had failed to lodge his application for review within the requisite 21-day period stipulated by the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with determining whether the FWC's decision was legally sound, particularly focusing on whether the time bar applied and whether any exceptions to the time limit were applicable.

The primary legal issue was whether the FWC correctly applied the time limitation for filing an unfair dismissal claim. Mr Dang argued that he had been misled by Plasmo regarding the dismissal process, thereby justifying an extension of time. The court was required to assess the validity of this argument and whether the respondent's conduct warranted any exceptions to the statutory time limit. Another aspect involved examining whether the FWC had erred in its interpretation of the relevant legislative provisions and case law.

The court examined the statutory requirements and the FWC's application of the time bar, concluding that the FWC was correct in its decision. The court held that Mr Dang's claim was indeed time-barred as he had not lodged his application within the mandated 21-day period. The court found no evidence of misleading conduct by Plasmo that would warrant an extension of time. Furthermore, the court confirmed that the FWC had appropriately applied the law and that there were no grounds to interfere with the FWC's decision. The appeal was thus dismissed.

Mr Nung Dang v Plasmo Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established