Phuong Huu Nguyen v Ofinac Acoustical Engineers Ply Ltd
[2022] FWC 1797
•11 JULY 2022
| [2022] FWC 1797 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Phuong Huu Nguyen
v
Ofinac Acoustical Engineers Ply Ltd
(U2022/6042)
| COMMISSIONER YILMAZ | MELBOURNE, 11 JULY 2022 |
Application for an unfair dismissal remedy - out of time - extension of time denied.
This decision concerns an application by Mr Phuong Huu Nguyen (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).
The Applicant was dismissed on 12 May 2022 from his full-time position of boilermaker and welder that he held with Ofinac Acoustical Engineers Pty Ltd (Ofinac) since 3 October 2016. This application was filed on 5 June 2022, 3 days late of the 21-day statutory time frame.
Prior to full-time employment, Mr Nguyen was engaged as a contractor for Ofinac from 2004. In the period before the dismissal, Mr Nguyen was allocated a job to build a silencer for the mines. This job had a deadline and according to the general manager, required teamwork and co-operation. Mr Nguyen was dismissed for refusing to cooperate and work as a team. The dismissal was immediate with five week’s notice in lieu.
Ofinac is an engineering business offering noise control products and services for commercial and industrial purposes. Mr Nguyen’s duties included the interpretation of 2D designs, calculating and working out dimensions, processing factory orders to cut, fabricate and finish products, including exhaust pipework, mufflers and diesel tanks.
I held a hearing on 6 July 2022 to consider Mr Nguyen’s extension of time application. Mr Nguyen was represented by Ms Nen Pho, a long-time friend and tendered witness statements from Darren Robertson, sheetmetal worker, Sophie Nguyen, his daughter and gave witness evidence himself. Mr Robert Wickham, general manager gave evidence on behalf of Ofinac.
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 Commission allows pursuant to s.394(3).
The date the dismissal “took effect” is when notice of the dismissal is communicated to the employee. It is not in dispute that the date of dismissal took effect on 12 May 2022.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made, only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]
The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
a) the reason for the delay;
b) whether the person first became aware of the dismissal after it had taken effect;
c) any action taken by the person to dispute the dismissal;
d) prejudice to the employer (including prejudice caused by the delay);
e) the merits of the application; and
f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Reason for the delay
Mr Nguyen submits that his application should have been lodged on Thursday 2 June but instead was lodged on Sunday 5 June 2022. He submits that after a long period of being unfairly treated in the workplace and following the dismissal, he experienced depression and anxiety. Despite this, he contacted a former co-worker to find out about the unfair dismissal process. This advice was that legal costs were expensive and gave Mr Nguyen further reason for panic as he did not have the funds for legal representation. He managed his stress by avoidance.
On 22 May 2022, he states that his daughter, concerned about her father approached him and he revealed that he had been dismissed. It was agreed between them that he contact his friend Ms Pho, a law student, as she was inclined to provide free advice. On 26 May 2022, in a series of texts Mr Nguyen communicated with Ms Pho and he was given information on Job Watch and other services, referred to the Commission’s website, and informed that an application had a to be filed within a statutory time frame of 21 days from the date of dismissal.
On 30 May 2022, Mr Nguyen completed his form F2 with assistance and was instructed by Ms Pho to send it to the Commission together with his letter of termination and payslip.[3] On the same day he emailed his form to Ms Pho to check over it.[4] On 31 May 2022, Mr Nguyen contacted Mr Robertson, his co-worker (support person and union representative) asking whether he would be prepared to provide a character reference. He submits that on 1 June 2022 Ms Pho advised him that she would be going away for medical treatment the following day until 4 June 2022, and that she would have limited internet and phone access. Ms Pho offered to assist with the filing of the application and Mr Nguyen sent her his Form F2, letter of termination and payslip, but typed the wrong email address. After no answer Mr Nguyen again emailed Ms Pho the following day. He gave evidence that he knew of the time frame and despite Ms Pho not responding to him he did not feel comfortable to phone or text her as she was assisting without charging a fee. He stated that his anxiety and reliance on Ms Pho was the reason for not filing directly with the Commission. On Ms Pho’s return on 4 June 2022, and due to her inquiries, the wrong email address was discovered and she then lodged the application at 10.17pm on 5 June 2022.
Ofinac submit that there is no exceptional reason for the delay and the application should be dismissed.
Extension of time applications set a high bar; therefore, the entire period of delay must be explained with credible reasons.[5] Evidence to support the credible the reasons will be expected. Further the reasons for the delay are to be exceptional.
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[6]
Mr Nguyen submits that he was anxious and depressed, but tendered no evidence in support other than his daughter’s statement of concern about her father’s wellbeing. It is well understood and expected that a person will experience some anxiousness and be upset by a dismissal. However, despite these feelings, rarely is it so debilitating that an applicant is unable to lodge an application. The evidence is that while Mr Nguyen was invariably upset and embarrassed as he states, he gave evidence that he did not want to deal with it.
There is no evidence filed in this matter that suggests he was incapacitated, but rather the evidence shows he had capacity to deal with his application by speaking to his daughter, reaching out to a former co-worker, contacting his work support person and corresponding with Ms Pho via text, phone and email.
An application is the responsibility of the Applicant, even where an Applicant engages legal representation, the responsibility remains with the Applicant to ensure that he is blameless for the delay. In this instance, given Mr Nguyen’s inaction with respect to the filing of his application, I cannot find that he is blameless for the delay.
It is suggested that as the application was filed on Sunday as opposed to the Thursday that it should weigh in favour of an extension. Further Ms Pho suggests that the cause for delay is a “combination of ordinary factors when taken together are exceptional.”[7] As already stated, the time frame is clear and it not intended to be a lose guide. The bar for an extension is high. Mr Nguyen understood the timeframe, he understood Ms Pho was unavailable for medical attention, and despite this, he chose not to file the application but ignore the situation. No matter how one characterises his lack of action, it cannot be considered exceptional to warrant an extension of time. For these reasons I am not satisfied that Mr Nguyen has given valid reasons for the delay.
The Act is clear that the 21 days commences from the date of effect of dismissal and this application is 3 days late. The bar to grant an extension is high and Mr Nguyen’s explanation for the entire period of the delay while not exceptional, must be considered together with the balance of provisions in s.394(3)(b)-(f) of the Act.
Whether the person first became aware of the dismissal after it had taken effect
There is no contest that the dismissal took effect on 12 May 2022.
Action taken to dispute the dismissal
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]
Mr Nguyen submits that he challenged his dismissal and challenged his prior warnings, maintaining that the accusations against him were false. Further, he submits that he informed Mr Wickham that he would bring legal proceedings against Ofinac.[9]
Mr Wickham denies any warning or to challenge of his dismissal was made as Mr Nguyen left his office on 12 May 2022.
As it is contested that Mr Nguyen put Mr Wickham on notice that he would take legal action and no evident challenge other than the application, I find this consideration neutral. The fact that Mr Nguyen disagreed with his prior warnings is not relevant to this consideration.
Prejudice to the employer
Both parties do not contend that the delay causes prejudice to the Respondent. While I find no prejudice to the Respondent, the authorities provide that the mere absence of prejudice is insufficient to grant an extension of time.[10]
This consideration does not weigh up with the other considerations in favour of the assessment that there are exceptional circumstances.
Merits of the application
Mr Nguyen submits his dismissal is harsh, unjust and unreasonable. Among the reasons for his justification of his unfair dismissal application, he refers to:
· His age and impact on his personal circumstances;
· His long and loyal service;
· The unlikelihood of finding such high paid work because he was dismissed;
· His alleged conduct was in his view insignificant to his employer;
· Having had no opportunity to justify his conduct;
· That his employer shared personal information in the Form F3;
· Receiving a warning for excessive absenteeism on 4 May 2022, which he did not agree with. He states that he is entitled to take personal leave to comfort his daughter having failed her driving test. He further contends that the warning for refusing to work overtime was unjustified as he has worked overtime;
· The reason for the dismissal in his view did not justify termination, rather his employer should have accepted his explanation and provided an opportunity to improve;
· Alleged unfair treatment (bullying) in the past and unfairness of the dismissal. Mr Nguyen submits that his employer should have accepted his reasons for absence, his refusal to work overtime that week and the reason for his unwillingness to perform the work. He further denies delaying completion of the project;
· The day of dismissal was on a day when his regular support person was not at work and this was unfair; and
· Having to wait for the final paperwork for some two hours concerning the dismissal following the dismissal meeting.[11]
Ofinac describe Mr Nguyen as a competent boilermaker, but preferred to work on his own avoiding teamwork. Initially, Mr Nguyen was the only boilermaker and his behaviour was tolerated, but as the business grew and more boilermakers joined, there was a need to collaborate and Mr Nguyen’s tendency to do as, and when he pleased, would not be tolerated. Mr Wickham gave evidence that while Mr Nguyen complained about others, he too displayed inappropriate behaviour by using robust language, talking over others, never compromising or admitting to his own behaviour and demanding of apologies. Mr Wickham gave evidence that Mr Nguyen told him to “Fuck off” on more than one occasion with the most recent being on 12 May 2022, after not agreeing to pay redundancy pay. Mr Wickham further gave evidence of past behaviour subject to disciplinary action and the reason for the dismissal which he says was the last resort, because Mr Nguyen refused to cooperate on the project which had a strict deadline, refused to work overtime to meet the deadline and was caught on his phone during working time instead of performing duties.
Mr Wickham described the scheduled disciplinary meeting on 2 May 2022 and stated that the same attitude and behaviour was displayed on 12 May 2022 which was intended to garner his cooperation but led to the dismissal. On 29 April 2022, Mr Nguyen was given notice of the meeting on 2 May 2022. He advised his foreman that he was leaving at 2.00pm as he had business to attend to. When the general manager advised him that his finish time was 3.00pm, Mr Nguyen responded, “Your problem, your business not mine.” and left.
Having examined the evidence and heard from Messrs Nguyen and Wickham it is evident that the merits of the application will turn on contested facts. For instance, Mr Nguyen denies that he ever directed expletives in an aggressive tone towards his manager and states that he used his mobile phone to perform work-related calculations. Incidents concerning past warnings were also highly contested. The evidence of Mr Robertson was unhelpful as he did not observe any of the incidents that are contested. Had Mr Nguyen behaved in the manner described by Mr Wickham and given the past warnings, it is likely that the dismissal was not unfair.
When a matter turns on contested facts, a hearing is required to weigh the merits of the matter, and this would occur if an extension of time is granted. It is well established that in extension of time proceedings that the contested facts are not resolved, nor any firm assessment made. Based on the Applicant’s material, I cannot conclude that he has an apparent case. His submissions concerning the reasons for why he says his dismissal is harsh, unjust and unreasonable do not in themselves demonstrate an apparent case. Simply denying all allegations from the employer, failure to follow lawful directions and abuse of personal leave entitlements for reasons other than their intention would not weigh in his favour. However, procedural fairness is a relevant consideration, and an absence of material does not assist in any basic assessment.
For the reason of contested facts and an absence of evidence from Mr Nguyen to support an arguable case, I find the consideration of merits neutral.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
In this instance, neither the Applicant nor Respondent addressed this consideration. I am therefore satisfied that this consideration is a neutral assessment as to whether there are exceptional circumstances.
Conclusion
Having regard to the matters I am required to take into account under s.394(3)(a) to (f) and all of the matters raised by the Applicant, I am satisfied that there are not exceptional circumstances to grant an extension of time from among one or the collective of the required considerations.
Accordingly, the application for an unfair dismissal remedy is dismissed.
COMMISSIONER
Appearances:
Ms N. Pho for the Applicant.
Mr R. Wickham for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
6 July
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Applicant’s outline of submissions at [18].
[4] Ibid at [19].
[5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[7] Applicant’s outline of submissions at [29].
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[9] Applicant’s outline of submissions at [30] – [35].
[10] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.
[11] Applicant’s outline of submissions at [38] – [71].
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