Ms Lan Vinh Hoang Nguyen v Covermore Insurance Services Ltd T/A Covermore

[2017] FWC 5404

[2017] FWC 5404

FAIR WORK COMMISSION

DECISION

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

Ms Lan Vinh Hoang Nguyen
v
Covermore Insurance Services Ltd T/A Covermore
(U2017/8094)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 18 OCTOBER 2017

Ex tempore decision 17 October 2017 - application for an unfair dismissal remedy - extension of time - application dismissed.

[1] This is the edited text of an ex tempore decision made in transcript during proceedings on 17 October 2017.

[2] The applicant, Ms Nguyen, was dismissed by Covermore Insurance Services Ltd (the respondent) on 3 July 2017. She filed her application on 26 July 2017, 23 days after her dismissal.

[3] Under the Fair Work Act 2009, unfair dismissal applications must be made within 21 days after the dismissal took effect or within such further time as the Fair Work Commission (the Commission) allows.

[4] The Commission may only allow an extension of time beyond 21 days in exceptional circumstances, taking into account: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer; the merits of the application; and fairness between the person and other persons in a similar position. This is, as has been recognised by the Full Bench of this Commission, ‘a high hurdle’.

[5] I will discuss each of the factors referred to in the legislation in turn.

[6] I find that the applicant did not have a sound reason for the delay in making her application. The applicant initially filed a general protections application on 24 July 2017. According to the applicant, she thought this ‘was the more appropriate application’ given that her previous application to the Commission related to her allegations that she had been bullied. Again according to the applicant (in her unfair dismissal application):

‘On 26 July 2017, I received Notice of Listing for Telephone Conference with the Commission for 8 September which is some 6 weeks away. I have discontinued that application in order that the matter could be heard and resolved sooner.’

[7] In other words the applicant decided to file her unfair dismissal application (and withdraw her general protections application) because she thought this would mean her case would be dealt with more quickly.

[8] In her written submission the applicant said her initial decision to file a general protections application was:

‘rooted in [her] incorrect understanding that the application needs to follow on from the previous anti bullying application that had to be discontinued as [she] was no longer employed at Covermore. [She] had reviewed the bench books for General Protections and Unfair Dismissal seeking guidance but found nothing that describes the need to refile the matter anew as if it had not been filed previously with the Commission.’

[9] The applicant continued:

‘[Her] understanding was corrected when the matter was listed for conciliation and [she] realised that the matter is expected to be filed anew in which case an application under Unfair Dismissal would be more efficient as facts about the dismissal would allow Unfair Dismissal remedy to be considered. The application under Unfair Dismissal was made immediately on the same day when the cancelled listing under General Protections was sent out by email…’

[10] The applicant said in her oral submission that once she realised that she would have to file all her material anew (rather than relying on material filed in her previous anti-bullying application) she thought it would be better – mainly because it would allow the matter to be dealt with more quickly – to file an unfair dismissal application.

[11] To the extent that the applicant is claiming a misunderstanding of the law, I do not consider this in itself amounts to an acceptable explanation for the delay – and unfortunately – not a reason that would help constitute an exceptional circumstance.

[12] The applicant also refers to being afflicted with depression. The only medical evidence tendered is a psychological assessment dated 12 September 2017 – that is around 7 weeks after she filed her application. Even if I were to accept that the applicant was suffering from depression at the time she filed her application, this clearly did not prevent her filing a general protection application within 21 days of her dismissal. It is hard therefore to see why it stopped her filing an unfair dismissal application within time.

[13] I am satisfied that the applicant was aware of her dismissal on the day it took effect. She had taken action to contest her dismissal by filing the general protections claim, and no special prejudice would be faced by the employer if an extension of time were to be granted.

[14] With regard to the merits of the claim itself, I would be wary of expressing a strong view based on the limited material before me; however there are obvious weaknesses in the applicant’s case. There had been a number of complaints from customers and she had received three written warnings over a comparatively short period, prior to her dismissal.

[15] There is no evidence before me concerning any disparity in the treatment of the applicant when compared to other persons in a similar position that would be relevant to the issue of an extension of time.

[16] I note that the legislation was amended by the Fair Work Amendment Act 2012 to bring the time frame for the lodgement of general protections and unfair dismissal application into line. As the Explanatory Memorandum said:

‘This will provide greater clarity to applicants and respondents and will require applicants to determine at the outset which claim they intend to pursue.’

[17] There would have been nothing to stop the applicant pursuing her general protections claim. She made a deliberate choice to withdraw it and pursue an out of time unfair dismissal application instead.

[18] In conclusion, particularly in the absence of a good reason for the delay in filing the unfair dismissal application, and the lack of an obviously strong case, I find there are no exceptional circumstances that would warrant the Commission allowing an additional period beyond 21 days for the applicant to make her application.

[19] The unfair dismissal application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

The Applicant, Ms L Nguyen, appeared for herself

Mr S Forster, solicitor of Minter Ellison, appeared for the Respondent

Hearing details:

2017

Sydney

17 October

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