Mr Tri Nguyen v Canterbury Earlwood Caring Association Ltd
[2022] FWC 1081
•9 MAY 2022
| [2022] FWC 1081 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Tri Nguyen
v
Canterbury Earlwood Caring Association Ltd and ors
(C2021/8387)
| COMMISSIONER YILMAZ | MELBOURNE, 9 MAY 2022 |
Application to deal with contraventions involving dismissal - whether application made within or outside the prescribed 21 days - whether there are exceptional circumstances - extension of time denied.
On 9 December 2021, Mr Tri Nguyen lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Canterbury Earlwood Caring Association Ltd and 9 other Respondents (collectively referred to as the Respondents). Mr Nguyen commenced employment as a part-time Youth Project Coordinator on 8 April 2021 and the Respondents contend that the employment came to an end on 25 October 2021.
Prior to this application, Mr Nguyen lodged a general protection not involving dismissal application and an order to stop bullying application with the Commission. Mr Nguyen submits that it was on 18 November 2021, during a conference before the Commission in the bullying matter, that he became aware that his employment was terminated. He further submits that the Respondent asserts that he self-terminated his own employment, however as he was not aware that his employment came to an end, he submits that it is contested who initiated the dismissal.[1]
Upon obtaining legal advice on 1 December 2021 and being advised that his employment had come to an end, Mr Nguyen submits that he filed a general protection involving dismissal application.
I scheduled the jurisdiction hearing for 25 February 2022. At the hearing, Mr Nguyen was self-represented, and I granted legal representation for the Respondents collectively.
Mr Nguyen gave oral evidence at the hearing and Mr Flynn, CEO of the First Respondent, tendered a witness statement.
Applicant’s submissions
Mr Nguyen submits that he lodged 29 complaints against the Respondent volunteer Board and CEO alleging bullying and harassment. These complaints consist of nine to SafeWork New South Wales, 17 internal health and safety incidents and notifications and three to the Fair Work Commission (including this matter). Mr Nguyen submits a chronology of events consisting of some 75 entries and annexures concerning his allegations.
In respect to his general protections application, Mr Nguyen submits that his employment was threatened that he would not pass his probation period, but the threat was not carried out. He further submits that he was placed on performance management which he says was disingenuous because he met and exceeded KPIs.[2] Mr Nguyen submits that on 7 October 2021 he proceeded to take stress leave and during this period of leave he was threatened with disciplinary proceedings.[3] It is submitted that it was in or around this time that he filed the application for an order to stop bullying and a general protection not involving dismissal application.
In addition, Mr Nguyen submits that on 16 October 2021 his access to the work email and social media accounts was terminated, both of these resources he says are essential for his work and despite requests for a response, no response was received why access was withheld. Despite sick leave requests accompanied by medical certificates that were made on 25 October, 8 November and 29 November 2021, Mr Nguyen submits they were not processed.[4] Mr Nguyen also refers to a refusal by the Respondent to reimburse him for use of his personal SIM used for his communications regarding his Fair Work Commission applications.[5]
Mr Nguyen submits the behaviour towards him contravened his workplace rights in terms of Division 3 - s.340 Protection of Workplace Rights.
Respondent’s submissions
The Respondents submit there is no valid application before the Commission, and they object to the extension of time application. Further, the Respondents say that the Applicant has not advanced any satisfactory explanations for the delay and has not disclosed any exceptional circumstances to weigh in his favour.
Consideration
Date of termination
The date of termination of employment and who initiated the termination of employment is contested. Mr Nguyen submits that he never resigned, nor acted contrary to his contract of employment.[6] Mr Nguyen gave evidence that he believes the termination date is 1 December 2021, which coincides with the date that he obtained legal advice.
On 7 October 2021 Mr Nguyen submits that he commenced a period of personal leave due to stress. An email of 7 October 2021 from the Applicant to the CEO reads as follows:
“Unfortunately, I’m not feeling well and will need to go on leave to recover. Please find attached my medical certificate and leave application. I will return on Monday 25 October.”
On the same day and moments later, Mr Nguyen received a response “No worries,
Take care Tri.”[7]
I note that the medical certificate attached to the email is dated 6 October 2021, covers the period 7 October to 22 October 2021, and states that Mr Nguyen was unfit for work “on account of medical illness”. The certificate does not make reference to stress leave, nor does the email that was sent to the CEO. On 15 October 2021 he filed his s.372 and bullying applications.
On 16 October 2021, Mr Nguyen made an email file note at 5.18pm noting that he was unable to log in to the work email and the work server.[8] He made a further email note on 25 October 2021 at 7.53am that he was still unable to access his email and work server. Throughout this period Mr Nguyen informed the Respondents that he was absent on personal leave.
On 19 October 2021, Mr Nguyen wrote an email to the CEO, with multiple recipients copied into the correspondence, advising that his leave concludes on 22 October 2021 and drawing the CEO’s attention to the fact that he had been blocked from his work email and server files and was therefore unable to perform his duties.
In a further email to the CEO (and broadcast again to multiple recipients) on 25 October 2021 at 8.07am, Mr Nguyen states that the termination of his access to the work email and server is a breach of his contract and “accordingly” he attached a medical certificate for his continued absence and a letter from his psychologist.[9] I observe that the medical certificate covers the period of sick leave from 25 October to 5 November 2021 and the letter from the psychologist is dated 7 October and makes reference to an appointment of the same date and an earlier date of 23 September 2021. The letter refers to the personal reason for the counselling (bereavement) but also describes what Mr Nguyen reports on 7 October 2021, as bullying and harassment due to concerns raised by the employer and the manner in which they were raised relating to his performance, including what appears to be the personal impact they have had on him. I note that the letter does not make any other reference to alleged bullying, harassment or victimisation that Mr Nguyen alleges to have suffered since commencement of employment and which resulted in over 29 complaints against the Respondents, most of which predate the letter. The only reference in the letter is that on 23 September 2021, the psychologist refers to Mr Nguyen’s report that he felt like comments about his ability to plan were undermining. The letter makes no other refences to reports of earlier bullying, harassment or victimisation. Mr Nguyen purports to provide a medical certificate because he is unable to access his work emails and server which he says is a breach of his contract on the day he is due to return to work, whereas the certificate was issued on 20 October 2021 which indicates that he did not intend to return to work on 25 October 2021.
The CEO states that he met with Mr Nguyen on 27 September 2021 about performance and informed him that following the probation period that he would be placed on a performance improvement plan.[10] Mr Nguyen’s absence from work followed this meeting and while he states that he took stress leave, there is no evidence that the leave was stress leave when he submitted the medical certificate and covering email. Mr Nguyen never returned to work after submitting this first medical certificate.
On 16 October 2021, Mr Nguyen informed the Commission and multiple other email recipients that he was constructively dismissed.[11] The Respondents state they received this email the day after they received the two Fair Work Commission applications.
Mr Flynn’s statement states that Mr Nguyen’s medical certificate expired on 22 October 2021 but did not return to work on 25 October 2021. A request for further personal leave was not granted and on 26 October 2021, Mr Flynn sent an email confirming acceptance of the repudiation and termination of the contract of employment. The Respondents contend that Mr Nguyen’s employment ceased on 25 October 2021.[12]
The correspondence sent by Mr Flynn to Mr Nguyen on 26 October 2021,[13] states the following:
· Leave from 7-22 October was for an unspecified absence and because there was insufficient sick leave accrual, annual leave accrual was granted;
· The Respondents received two claims on 15 October that did not particularise the allegations, and given the brief period of employment, it was not apparent how legitimate claims could arise during reasonable management action to address performance concerns, during the probation period;
· The Respondents are unclear how the Applicant claims to be unsafe given that he has been working from home and has not reported any hazards or risks associated with working from home;
· On receipt of the Applicant’s email alleging breach of contract and attaching medical certificates, it states that while it denies the Applicant’s allegations it accepts his intention not to return to work and agrees that the employment has come to an end because of “constructive dismissal” and “breach of contract”;
· As the Applicant intends for the matters to be dealt with in the Commission, the Applicant has instructed lawyers to represent the Respondents and that he should cease corresponding with the Respondents directly; and
· It is also made clear that termination of employment entitlements will be processed and paid into the Applicant’s bank account. Further, a courier is to be organised to collect the Respondent’s property.
Subsequently, efforts were made to collect property from the Applicant and the final pay was made on 28 October 2021.[14]
I note that the Applicant emailed the Respondents and other recipients on 2 November 2021 alleging that he had not resigned nor was dismissed and submits a further 16 health and safety incidents, hazard reports and complaints. As Mr Nguyen was clearly informed on 26 October 2021 that the employment had come to an end and he was paid his entitlements, this email is puzzling, particularly as it alleges there are 16 further complaints. Annexure 16 contains the same complaints previously raised by Mr Nguyen which relate to comments about his performance, including recent events concerning the return of property, refusal to acknowledge that the employment has terminated and that the Respondent informed staff that he has ceased employment with the First Respondent. Mr Nguyen threatens continuation of his Fair Work Commission claims and also proceedings in the Federal Court. At the time of the hearing, Mr Nguyen did not give evidence that an application to the Federal Court had been made.
On 5 November 2021, the Respondents’ Representative in response to the Commission’s email advising of correspondence in relation to a bullying application, wrote to the Commission and the Applicant advising that the applicant was no longer a ‘worker’ for the purposes of s.789FF(1)(a) of the Act, noting that he had not worked for the First Respondent since 7 October and on 16 October 2021 he wrote to the Commission requesting his general protection application to be changed to a general protection application involving dismissal asserting he had been constructively dismissed. The email further states that while it refutes a constructive dismissal, it accepted the repudiation of the contract of employment taking effect from 25 October 2021 with the final pay processed on 2 November 2021.[15]
On 8 November 2021, in response to the Applicant’s email to multiple parties and attaching medical and psychologist documentation in support of his “taking leave,” the Respondents’ Representative wrote back placing him on notice to stop sending broadcast emails to their clients and third parties, and again noting that the employment relationship ceased on 25 October 2021.[16]
Despite this clear and unambiguous correspondence on 5 and 8 November 2021 that the employment relationship had ceased, Mr Nguyen continued to provide medical certificates and distributed his emails broadly to multiple recipients. The Respondents’ Representative again wrote on 29 November 2021, imploring him to stop submitting medical certificates reiterating that he was no longer an employee.
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[17] Generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of the employee’s usual email address.[18] In this instance the communication between the parties has been through email and Mr Nguyen evidently received the email of 26 October 2021. All of his correspondence since receiving this email states that he did not resign nor was he dismissed, despite his own email of 16 October 2021 where he states he was constructively dismissed and sought to alter his general protections application to one involving dismissal.
A dismissal is defined in the Act where a person’s employment is terminated on the employer’s initiative, or where the person resigned because they were forced to because of the conduct by the employer.[19] Whether Mr Nguyen’s dismissal was a constructive dismissal or alternatively a termination at the initiative of the employer is nevertheless a dismissal for the purposes of the Act. The Respondents accept termination of employment based on allegations of constructive dismissal and breach of contract; however, they say the termination of employment takes effect from 25 October 2021 which is the date that Mr Nguyen again contends a breach of contract.
The correspondence of 26 October 2021 from the Respondents to Mr Nguyen made clear that the employment had come to an end. The payment of entitlements and efforts to retrieve the Respondent’s property further makes clear that the employment had terminated. To avoid doubt the correspondence of 5 and 8 November 2021 from the Respondent’s Representative reiterated the termination of employment.
For the purposes of identifying the date of dismissal, and to avoid doubt whether Mr Nguyen understood that his email of 25 October 2021 would be construed as the date of dismissal, the letter the following day from the Respondent puts Mr Nguyen on notice in clear in no uncertain terms that the employment has come to an end. Therefore, for an application to be properly before the Commission, the 21-day timeframe would have required an application by 16 November 2021 at the latest. I do not accept Mr Nguyen’s submissions that the date of dismissal is the date he obtained legal advice, as this is inconsistent with the definition of dismissal pursuant to s.386 of the Act. The application is therefore 23 days outside the statutory time frame.
Extension of time
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. Having determined that the application was lodged 23 days after the 21-day statutory time limit, I need to consider whether to grant an extension of time.
While general protections applications involving dismissal must be made within 21 days, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a)The reason for the delay; and
(b)Steps taken to dispute the termination; and
(c)Prejudice to the employer; and
(d)Merits of the application; and
(e) Fairness between the person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[20] where it was held that:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[21]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission on 9 December 2021, 23 days late. For an extension of time to be considered, there must be a credible reason for the delay.[22]
Mr Nguyen submits that he filed his application on time.[23] He submits that his complaint has been before the Commission since 15 October 2021 in the form of the General Protections application (C2021/6961) and in respect to his application to stop bullying (AB2021/576). This application consists of materials described as “updated submissions with 81 annexures of evidence and chronology detailing 75 entries about the matter.”[24]
He further submits that the Respondents did not object to this application as being out of time, therefore it should proceed to hearing.[25]
In the alternative, should the application be found to be out of time, Mr Nguyen submits that the Chronology shows that the Respondents had every opportunity to dismiss him and if they had, he would have pursued a general protection involving dismissal application instead of the earlier applications that he made. Further, Mr Nguyen submits that the Respondents accepted the Commission’s jurisdiction over the previous two applications, “but delayed and refused to engage in good faith over these last 4 months.” He submits that should the extension of time be denied, it would constitute a “grievous injustice” and “commit a great procedural error.”[26]
Mr Nguyen submits that the delay, if there is a delay in the application, is due to the Respondents falsely asserting that he self-terminated to avoid responsibility in the first two applications and “unfairly render” this application out of time.[27]
The Respondents submit that Mr Nguyen has “neither identified any reasons for the delay nor explained why such reasons disclose exceptional circumstances.”[28] They address Mr Nguyen’s contention that the application is on time by stating that if that were the case then the Applicant is ignorant of what he could or should have filed. They submit that ignorance is not an exceptional circumstance. Due to the history of the dispute, they contend that the Applicant was aware of the time limit and his submissions “misrepresent the truth”.
Mr Nguyen in his submissions does state that the Commission informed him on 18 November that he should obtain legal advice as it appeared that his employment was in fact dismissed. However, he obtained advice on 1 December 2021 and does not explain the delay in doing so.
Having determined that the dismissal took effect on 26 October 2021, I am not satisfied that Mr Nguyen was unaware that his employment was terminated as his correspondence attempts to refute a dismissal in response to the correspondence confirming dismissal; he further ignores the clear and unambiguous correspondence of the Respondent’s Representative that reiterates that the employment relationship had come to an end. It is apparent that Mr Nguyen was not ignorant of the time limit, and he was aware of the applications open to him to contest the dismissal. Despite this lack of ignorance, Mr Nguyen provided no credible explanations for the delay.
In respect to Mr Nguyen’s submissions that his application is not late because he had two other applications before the Commission, firstly the other applications were different types of applications made. The general protections not involving dismissal application was apparent to Mr Nguyen that it was a different type of application, this was evident with his correspondence to change his application on 16 October 2021. There was no evidence why Mr Nguyen did not discontinue his application and file a fresh general protection involving dismissal application pursuant to s.365 of the Act. The bullying application is also a fundamentally different application that cannot be assumed to be a continuation of an application. The evidence shows Mr Nguyen understood that his bullying application could not continue after it was established that his employment came to an end. Secondly, the evidence shows that Mr Nguyen discontinued the general protections application on 28 October 2021 and the bullying application was discontinued on 22 December 2021. Had Mr Nguyen argued that the two general protections applications were the same, which they are not, the first application was discontinued on 28 October and this application was filed on 9 December 2021.
In addition, I do not accept Mr Nguyen’s argument that the Respondents did not object to the delay in the application. The Form F8A, response to the general protection application filed by the Respondents identifies in question 2.2 that it objects to the application on the grounds that it is outside the of the 21-day timeframe after the dismissal took effect. In any event, it is incumbent on the Commission to establish jurisdiction and in doing so to address whether the application was made within the statutory time frame, and if it was not, then consider the extension of time having regard to s.336(2) of the Act.
Having regard to the submissions and evidence, I am not satisfied that Mr Nguyen provided credible explanations for the whole duration or part of the duration of the delay. However, whether there are exceptional circumstances requires consideration of all the matters in s.366(2) of the Act.
Steps taken to dispute the termination
Mr Nguyen states that he disputes his termination of employment through this application which he filed on 9 December 2021. He further states that he disputed that he resigned when he was informed by the Respondent during the conference in the bullying matter that he had self-terminated. Mr Nguyen refers to his correspondence of 18 October, 26 October, 2 November, 5 November, the conference held on 11 November and 18 November 2021.[29]
The Respondent submits that the Applicant challenged his dismissal in other applications before the Commission and elsewhere and therefore this further illustrates that he understood that his employment was dismissed.
Having assessed the volume of material filed by the Applicant, I accept that the Respondents were on notice that a dismissal would be challenged. However, in this matter, Mr Nguyen by his own admission had lodged multiple applications and complaints in this Commission, SafeWork NSW and with the Respondents directly while also threatening Federal Court action. This conduct does not in itself necessarily weigh in his favour but does need to be considered together with the balance of the factors in determining whether there are exceptional circumstances for an extension of time.
Prejudice to the employer
Mr Nguyen submits that granting an extension of time will not cause the Respondents disadvantage or unfairness, in fact he submits that the delay has advantaged them with a 4-month period to prepare their response and instead caused on him prejudice.
The Respondents submit that the Applicant was reminded that the “Commission does not operate by way of trial by ambush, and the parties are entitled to procedural fairness.” It further raises its concerns that the material filed is prejudicial as it contains “unparticularised subjective assertions, opinions and allegations”. The Respondents also refer to the impact on the Directors which hold volunteer positions and the impact on their professional time in their professional jobs including the impact on the organisation’s insurance to respond to spurious claims made against the individuals.[30] It is noted that since Mr Nguyen filed his third application in the Commission a number of individually named Respondents including the CEO had resigned.
The volume of allegations and complaints made by Mr Nguyen do not by virtue of their sheer number evidence merit. Unfortunately, the absence of particular detail in the allegations compound the complexity in identifying whether Mr Nguyen has a genuine grievance, other than his displeasure in being spoken to about his performance. It is also unfortunate that Mr Nguyen is visibly aggrieved and has not been able to resolve his grievance. However, I am also mindful that the manner in which Mr Nguyen has advanced his grievances by inundating each of the Respondents with an abundance of emails has done little to enable an agreeable resolution of his grievances.
In any event, I am satisfied that the Respondents are disadvantaged and inconvenienced but not necessarily prejudiced as a consequence of the delay. However, in line with established precedent, even the mere absence of prejudice is an insufficient basis to grant an extension.
Merits of the application
Mr Nguyen contends that he had been bullied and harassed since he commenced employment and following his complaints to SafeWork NSW, he was placed on a performance management program. He further contends that he asked why he was placed on a performance management program while on “stress leave,” which led to a threat of disciplinary action.[31] Mr Nguyen continues that he notified the Respondents of his Fair Work applications and submitted further SafeWork complaints on 15 October 2021; the same day that the first two of three complaints to the Commission were made. He also contends that his applications for stress leave were rejected and termination of his access to emails and Facebook followed. Mr Nguyen relies on s.340 (protection of workplace rights) of the Act in respect to his application.
Mr Flynn, CEO of the First Respondent states that following his own commencement of employment in July 2021, the Board informed him that there were performance concerns during the Applicant’s period of probation. Based on that advice, he met with Mr Nguyen on 27 September 2021 and informed him following completion of the probation period that he would be placed on a performance improvement plan. He states that Mr Nguyen then took personal leave from 7 October 2021.[32] This evidence was not contested by the Applicant.
Mr Flynn also states that on 15 October 2021, without prior notice he and the other Respondents were copied into an email sent by Mr Nguyen to the Commission’s Anti-Bullying team. He then states that on 16 October 2021, he and the other Respondents were copied into an email from Mr Nguyen to the Commission’s General Protections team.
Mr Flynn states that in the email of 16 October 2021, (copy attached to the witness statement) Mr Nguyen informed the Commission that he had been constructively dismissed, that there had been a breach of his contract of employment, requested that his application be amended to general protection involving dismissal and advised that he had no intention of returning to work. However, the emails from Mr Nguyen are as follows:
“It has transpired that my employer has acted in a manner that has become a constructive dismissal and retaliation against me.
Accordingly, I wish to change my General Protections (Non Dismissal) application to that of a General Protections (Dismissal).
In the interest of transparency, fairness, impartiality, and full disclosure, the Board and CEO have acted in a way that is not in accordance with procedural fairness and with indifference to the spirit of the Fair Work Act.
I hope this will be resolved as quickly as possible.”[33]
…
“In the interests of transparency, fairness, impartiality, and full disclosure, I enclose my bullying and harassment, and general protections claim.
I seek Fair Work Commission and SafeWork NSW’s protection.”[34]
I observe that in the space of a day, Mr Nguyen sought to amend his general protection application to a general protection dismissal application alleging constructive dismissal.
Other than Mr Nguyen’s file note on 16 October 2021 at 5.18pm concerning his inability to access his work email and work server there is nothing in the evidence or submissions to shed light on the alleged constructive dismissal. I do note that the file note was made a short time after his email to the Commission advising of a constructive dismissal.
I also observe that on 19 October 2021, Mr Nguyen emailed the CEO (and broadcast to multiple recipients including the Commission) at 4.04pm advising that his leave would conclude on Friday 22 October 2021, however, as bullying and harassment in the workplace has impacted his health, and he feels unsafe, he asks for what if anything will be done to restore safety. In addition, the email points out that he has been blocked from access to email and the server and unable to perform his duties. He makes it clear that he expects the matter to be resolved at Fair Work and SafeWork NSW.[35]
The above email follows an earlier email from Mr Nguyen to the Commission on 18 October 2021 at 2.38pm (and copied in multiple recipients) advising that he intends to pursue both the bullying and general protections applications filed in the Commission. There is no further detail about his earlier request to amend his s.372 general protection application to a dismissal application (s.365).
It is not contested that the conference before the Commission regarding the general protection (s.372) application did not proceed. I do observe that Mr Nguyen was clearly informed that a certificate was not required to proceed with a general protection (s.372) application to the Federal Circuit Court, after a certificate was requested. The email from Chambers provided clear guidance in relation to s.372 applications compared to those pursuant to s.365 of the Act.
Mr Nguyen states that his general protection application is based on s.340 of the Act. The Respondents contend that it is apparent that the materials filed by the applicant are “no more than a compilation of the Applicant’s own subjective opinion unsupported by the existence of any objective facts.”[36]
While Mr Nguyen refers to his materials as statements of evidence, there is an absence of evidence. Rather Mr Nguyen has established that he has lodged many complaints and allegations which have not been substantiated in these proceedings. Further, while it is not the role of the Commission to make findings of fact through detailed consideration of the substantive case,[37] however, where an applicant’s submissions on the merits lack detail, they are unlikely to favour an extension of time being granted.[38] I cannot find that the application has merit, at best given the contest on facts the merit is a neutral consideration and does not weigh in Mr Nguyen’s favour.
Fairness between the person and other persons in a like position
Mr Nguyen does not refer to any matters in relation to this consideration other than submitting that should I not grant an extension of time that the decision will act as a precedent for applicants that had been “blocked” from pursuing in good faith their claim. He says that Respondents would engage in delay and refuse to participate in conciliation and then assert the Applicant had self-terminated.
The Respondents addressed Mr Nguyen’s submissions but did not raise any matters concerning fairness between the Applicant and other persons in a similar position.
While I accept that Mr Nguyen has concerns about any precedent arising from this decision, the purpose of this consideration is concerned with the consistent application of principles and relates to like matters or other employees of the Respondent. Relevantly, a Full Bench noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[39] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[40] Whether there is any precedent from the decision will turn on the facts in subsequent matters.
As neither party could refer me to any matters relevant to these proceedings, I find this consideration neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of the considerations that I have decided not to grant an extension of time. Having considered the evidence and submissions against each of the factors set out in s.366(2) of the Act, I am not satisfied that Mr Nguyen has satisfied the Commission of exceptional circumstances warranting an extension of time.
In addition to the objection raised concerning delay, the Respondent contends that it is not a constitutional trading corporation on the basis that it is a not-for-profit community organisation reliant on government funding.[41] Mr Nguyen disputes the submissions and tendered documents concerning projects and financial information detailing grants and senior group fees received. From the material tendered the substantial income relates to government funding and insignificant income appears from alternative sources. While it may appear that the activities are unlikely to show that the organisation is a trading entity, I am satisfied that I need not make any determination on the matter as I have not found in favour of an extension of time.
Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
T. Nguyen on his own behalf
D. Gardner for the Respondent
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
25 February
[1] Applicant’s Form F8- General Protection s application involving dismissal at Q1.2.
[2] Form F8 at 3.1 [16].
[3] Ibid at [22].
[4] Ibid at [27]
[5] Ibid.
[6] Outline of Argument in the Applicant’s Chronology of facts at [21].
[7] Applicant’s statement of evidence, annexure 15 emails of 7 October 2021.
[8] Applicant’s statement of evidence annexure 14.
[9] Applicant’s statement of evidence annexure 15.
[10] Statement of Matthew Flynn at [4] – [5].
[11] Statement of Matthew Flynn, attachment A.
[12] Statement of Matthew Flynn at [10] – [12] and attachment B.
[13] Ibid attachment B.
[14] Ibid attachments C and E.
[15] Ibid.
[16] Ibid.
[17] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[18] Ayub v NSW Trains[2016] FWCFB 5500, [50].
[19] Section 386 of the Fair Work Act 2009.
[20] [2011] FWAFB 975.
[21] Ibid at [13].
[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[23] Applicant’s outline of submission at Q4 and Annexure 1 Chronology of facts and outline of argument [10].
[24] Applicant’s statement of evidence at [7] – [8].1
[25] Outline of argument in the Applicant’s Chronology of facts at [10] – [12] and Applicant’s statement of evidence at [10].
[26] Outline of argument in the Applicant’s Chronology of facts at [15] – [18].
[27] Ibid at [22].
[28] Respondent’s submissions regarding proceedings out of time at [13].
[29] Outline of argument in the Applicant’s chronology of facts at [26] – [27].
[30] Respondents’ submissions regarding proceedings out of time at [38] – [40].
[31] Outline of argument in the Applicant’s chronology of facts at [35] and Applicant’s statement of evidence at [22].
[32] Statement of Matthew Flynn at [1], [4] – [6].
[33] Statement of Matthew Flynn attachment A. Email of 16 October 2021 at 5.06pm.
[34] Statement of Matthew Flynn attachment A. Email of 15 October 2021 at 11.04am.
[35] Applicant’s statement of evidence Annexure 15, email of 19 October 2021 at 4.04pm.
[36] Respondents’ submissions regarding proceedings out of time at [45].
[37] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[38] See Day v CBI Constructions Pty Ltd [2013] FWC 5359, [19]; Fitzpatrick v Danila Dilba Health Service[2013] FWC 4565.
[39] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
[40] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[41] Respondents’ submissions regarding proceedings out of time at [66] – [68] and Annual report at annexure R2.
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