Nguyet Bui v Alsco Pty Ltd - [2022] FWCFB 60

[2022] FWCFB 60

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Nguyet Bui
v

Alsco Pty Ltd

(C2022/312)

VICE PRESIDENT CATANZARITI
deputy president cross
commissioner P ryan

SYDNEY, 13 APRIL 2022

Appeal against decision PR736900 of Deputy President Asbury at Brisbane on 17 December 2021 in matter number U2021/9743 – permission to appeal refused.

Introduction

Mrs Nguyet Bui (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required, against an ex tempore decision and order[1] (Decision) made on 17 December 2021 by Deputy President Asbury (Deputy President) and reasons[2] for the Decision.

The Decision concerned an application for an unfair dismissal remedy pursuant to s.394 of the Act. The Decision concerned a jurisdictional objection that the application was filed out of time.

An application for an unfair dismissal remedy made pursuant to s.394 of the Act must be made within 21 days after the dismissal takes effect or in such further time that the Fair Work Commission (Commission) allows. The Appellant’s termination of employment took effect on 20 August 2021, and the application was required to be lodged by 10 September 2021. The unfair dismissal application was filed on 31 October 2021, 51 days out of time.

The Deputy President refused to grant an extension of time for the filing of the application as she was not satisfied there were exceptional circumstances and therefore, there was no basis to allow an extension of time.

This matter was listed for permission to appeal only, ALSCO Pty Ltd (the Respondent) was not required to file any material and it did not do so. The application for permission to appeal was heard on 9 March 2022.

For the reasons that follow, permission to appeal is refused.

Background and Decision

The Appellant commenced employment with the Respondent on or about 19 August 2014 and was dismissed from her employment on 20 August 2021.

Following the termination of her employment, the Appellant sought legal advice from Legal Aid on 1 September 2021 and thereafter, posted an application for an unfair dismissal remedy to the Commission on 3 September 2021.

On 7 September 2021, the Appellant contacted JobWatch, an employment rights legal centre, seeking further advice regarding her rights. Following receipt of that advice, and prior to the unfair dismissal application being received by the Commission, the Appellant attended the Brisbane registry on 8 September 2021 and filed a general protections application involving dismissal.

On 13 September 2021, the Appellant advised the Commission that she wished to proceed with the general protections application in lieu of the yet to be received application for an unfair dismissal remedy.

On 14 October 2021, the Commission conducted a conference in relation to the general protections application. The Appellant was represented at the conference by a representative of the United Workers Union.

Between 14 and 31 October 2021, there were ongoing discussions between the parties and the Commission in the context of attempting…

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

AGLC: Nguyet Bui v Alsco Pty Ltd [2022] FWCFB 60
Case: [2022] FWCFB 60
Decision Date: 13 APRIL 2022

CaseChat Overview and Summary

Nguyet Bui has appealed against the decision of Deputy President Asbury, who dismissed her application for unfair dismissal as being out of time. The appeal concerns the Deputy President's refusal to extend the time limit for filing the application on the basis that there were no exceptional circumstances. The Full Bench, comprising Vice President Catanzariti, Deputy President Cross, and Commissioner Ryan, considered the appeal and refused permission to appeal. The Full Bench found that the Deputy President had correctly applied the law and did not make any error in her decision. The Appellant's grounds of appeal did not raise any arguable case of appealable error and did not demonstrate that the Deputy President's decision was attended with sufficient doubt to warrant reconsideration. Additionally, the Full Bench did not find that the appeal attracted the public interest, as there was no diversity of decisions, no issues of importance or general application, no injustice or counterintuitive result, and no disharmonious legal principles compared to other similar decisions. Therefore, permission to appeal was refused.

The legal issue in this case was whether the Deputy President's decision to refuse an extension of time for filing an unfair dismissal application was correct. The Full Bench found that the Deputy President had correctly applied the law and did not make any error in her decision. The Appellant's grounds of appeal did not raise any arguable case of appealable error, as the Deputy President had considered all relevant factors and made her assessment based on the evidence before her. Additionally, the Full Bench did not find that the appeal attracted the public interest, as there was no diversity of decisions, no issues of importance or general application, no injustice or counterintuitive result, and no disharmonious legal principles compared to other similar decisions. Therefore, permission to appeal was refused.

Orders