Ngoc Tran v X-RD Pty Ltd - [2023] FWC 2187

[2023] FWC 2187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ngoc Tran
v

X-RD PTY LTD

(C2023/4315)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 31 AUGUST 2023

Application to deal with contraventions involving dismissal - application filed outside 21-day period - exceptional circumstances not found – application dismissed.

Introduction

Ms Tran (the Applicant) has made an application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal. She contends that she was dismissed by X-RD Pty Ltd (the Respondent) in contravention of sections 340, 342 and 345 of the Act.[1]

Section 366 of the Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

Ms Tran’s application was made on 20 July 2023 and her application form states that the dismissal took effect on 11 July 2022. The application was therefore filed 374 days after the dismissal took effect and 353 days beyond the 21-day time limit.

This decision deals with the question of whether exceptional circumstances exist warranting an additional period of time to make the application.

The issue was dealt with at a hearing on 30 August 2023, at which the Applicant gave evidence in support of her application. A witness statement of Mr Vogel, who was not required for cross-examination, was also submitted.

Factual context

The Applicant commenced employment with the Respondent as a (Junior) Applied Artificial Intelligence and Machine Learning (Data) Scientist on 17 January 2022. The employment was subject to a written contract, including a 3-month probation period. The probation period was extended by the Respondent for a further 3-month period, apparently without the Applicant’s agreement.

The Applicant was given written notice on 4 July 2022 that her employment was being terminated, effective 11 July 2022. The Applicant was dismissed for not meeting performance expectations.

Mr Vogel, who shared a house with the Applicant, gave evidence that he observed a change in the Applicant around May-June 2022 and became increasingly concerned about her as she seemed to be depressed.[2]

In July 2022 the Applicant applied for and accepted an offer of employment with another company, ‘blackbook.ai’, where she worked between August 2022 and January 2023.

In January 2023 the Applicant emailed Mr Tim Hill, one of her former managers at the Respondent, asking if he would provide a reference for her, as she needed to apply for work again because her employment at ‘blackbook.ai’ had ended.

The Applicant had also made two earlier section 365 applications in substantially similar terms as the present Application. The first was made on 7 June 2023 (C2023/3284) and withdrawn on 9 June 2023. The second was made on 10 June 2023 (C2023/3372) and was discontinued on 13 July 2023. The Applicant did not proceed with these applications because of concerns about the impact on her health.

Ms Suringa, a psychologist at VCPS, provided a letter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2187
Decision Date: 31 AUGUST 2023

CaseChat Overview and Summary

Ngoc Tran has brought an application to the Fair Work Commission under section 365 of the Fair Work Act 2009, alleging that her dismissal by X-RD Pty Ltd was unlawful. She contends that the dismissal contravened sections 340, 342, and 345 of the Act. Section 366 of the Act mandates that such an application must be filed within 21 days of the dismissal, or within an extended period if the Commission finds exceptional circumstances. Ms Tran’s application was lodged 374 days after the dismissal, far exceeding the statutory time limit. The central issue before Deputy President O’Neill was whether there were exceptional circumstances justifying the extension of the application period.

The Deputy President considered several factors to determine if exceptional circumstances existed. Firstly, the reason for the delay was scrutinized. Ms Tran cited concerns about her mental health, including suicidal thoughts, as the primary reason for the delay. However, the Deputy President found that the evidence provided, including a brief statement from a psychologist, was insufficient to establish that Ms Tran was incapable of making the application earlier. Additionally, Ms Tran's ability to secure another job and her ongoing engagement in employment suggested that she was not incapacitated by her mental health issues. Other reasons given for the delay, such as fear of the establishment and concerns about her career reputation, were deemed not exceptional.

The Deputy President also considered the prejudice to the Respondent caused by the delay. The Respondent argued that the significant passage of time and the departure of key witnesses made it difficult to properly respond to Ms Tran's claims. This was considered a strong factor against finding exceptional circumstances. Furthermore, the merits of Ms Tran's application were reviewed. The Deputy President found that Ms Tran's claims did not appear strong, and therefore, this factor was neutral. Finally, the fairness to Ms Tran in comparison to others in similar situations was considered, but no relevant cases were identified. The Deputy President concluded that the substantial delay without an acceptable explanation outweighed any potential merits of Ms Tran’s claims.

In conclusion, the Deputy President found no exceptional circumstances existed to justify the extension of the application period. Consequently, the application was dismissed. An order to this effect will be issued separately.

Orders