Nguyet Bui v Alsco Pty Ltd - [2022] FWC 20

[2022] FWC 20

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nguyet Bui
v

ALSCO Pty Ltd

(U2021/9743)

DEPUTY PRESIDENT ASBURY

BRISBANE, 31 JANUARY 2022

Application for an unfair dismissal remedy

This decision concerns an application by Ms Nguyet Bui (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act). The Applicant states that she was employed by ALSCO Pty Ltd and that her dismissal took effect on 20 August 2021. The application was filed on 31 October 2021.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Fair Work Commission (Commission) allows pursuant to s.394(3). The dismissal took effect on 20 August 2021 and the period of 21 days ended at midnight on 10 September 2021. The application was therefore filed 51 days outside of the 21-day statutory timeframe. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

On 10 November 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide reasons as to why an extension should be granted, having regard to the matters in s.394(2) of the FW Act. The Vice President’s Chambers also requested a completed F3 – Employer Response from the Respondent. The Applicant sought additional time to file her response and on 24 November 2021, filed a response setting out the reasons why her application was not made within the required time.

The matter was allocated to me to determine and was listed for hearing on 17 December 2021. The Applicant’s Form F2 application stated the Applicant required the assistance of a Vietnamese interpreter, and a Vietnamese interpreter attended the hearing and provided interpretation for the Applicant.

At the hearing the Applicant confirmed that she relied on the written response provided to the Commission in relation to why a further period in which to make her application should be granted and gave oral evidence. The Respondent made submissions in opposition to a further period being granted. At the conclusion of the hearing, I informed the parties that I had decided to refuse the grant of a further period for the application to be made and gave my reasons on transcript, however I also informed the parties that I would provide written reasons for that decision if requested. The Applicant corresponded with my Associated after the hearing and I have taken that correspondence as a request for written reasons which I now provide.

Extension of time application

Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s 394(3).

The Act allows the Commission to extend the period within which an unfair dismissal…

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.

Continue reading Nguyet Bui v Alsco Pty Ltd

Details

AGLC: Nguyet Bui v Alsco Pty Ltd [2022] FWC 20
Case: [2022] FWC 20
Decision Date: 31 JANUARY 2022

CaseChat Overview and Summary

This case involves an application by Nguyet Bui (the Applicant) for an unfair dismissal remedy against ALSCO Pty Ltd (the Respondent) under section 394 of the Fair Work Act 2009 (FW Act). The Applicant, who was dismissed from her employment on 20 August 2021, lodged her application for unfair dismissal on 31 October 2021, 51 days beyond the statutory 21-day timeframe. The central legal issue was whether the Fair Work Commission (Commission) should grant an extension of time for the Applicant to make her application. The Applicant sought an extension under section 394(3) of the FW Act, which allows for an extension if there are "exceptional circumstances". The Respondent opposed the extension, arguing that there were no exceptional circumstances present.

In assessing the application for an extension, the Deputy President considered various factors stipulated by section 394(3) of the FW Act, including the reason for the delay, whether the Applicant was aware of the dismissal, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness to other similarly situated individuals. The Deputy President found that the primary reason for the delay was the Applicant's decision to withdraw her initial unfair dismissal application and file a general protections application instead, believing it would allow her to pursue a broader range of claims. The Applicant then decided to file an unfair dismissal application after being dissatisfied with a settlement offer related to her general protections application. The Deputy President concluded that the Applicant's decision to file the wrong type of application, despite having access to multiple sources of legal advice, did not constitute exceptional circumstances. The Applicant's difficulty understanding the applications due to English not being her first language was also not deemed exceptional, as she had the assistance of an interpreter and demonstrated an understanding of the applications.

The Deputy President further noted that while the Applicant took prompt action to dispute her dismissal, the absence of an acceptable explanation for the delay and the significant 51-day delay weighed against granting an extension. Additionally, while there was no prejudice to the employer, the merits of the application and the principle of fairness to others in similar positions also did not favour granting an extension. Consequently, the Deputy President decided not to grant an extension of time, and the application for an unfair dismissal remedy was dismissed. An order to that effect was issued on 17 December 2021.

Orders