Thi Hai Duong Luong v Carers of Africa Inc

[2020] FWC 2209

[2020] FWC 2209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Thi Hai Duong Luong
v
Carers of Africa Inc.
(C2020/616)

COMMISSIONER YILMAZ MELBOURNE, 4 MAY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied.

[1] On 3 February 2020, Ms Thi Hai Duong Luong known as Amy Thi Luong (Ms Luong), lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Ms Luong alleged she was employed by Carers of Africa Inc (COA) on 26 May 2019 until 16 August 2019 1. During the hearing Ms Luong alleged she last worked for COA on 9 September 20192.

[2] Ms Luong alleges that she was dismissed without knowing the reason. She alleges that the termination occurred after her bullying application was lodged in the Fair Work Commission 3. Ms Luong refers to a physical altercation between herself and the receptionist, which she alleges, together with her termination, resulted in various legal proceedings and caused her to have a car accident on 8 October 2019, because she was mentally distressed4.

[3] Ms Luong submits she is aggrieved because the delay in the application was caused by the Commission’s delay in handling her application and because the CEO of COA went overseas.

[4] COA submits Ms Luong was not dismissed, because she was never employed. Mr Chinganya, the CEO of COA, submits Ms Luong was engaged by the organisation through WISE Employment (WISE) as a volunteer on a 6-month work for the dole program. He submits that the work for the dole program concluded on 3 July 2019. Further, he submits no payment of wages was made to Ms Luong.

[5] Ms Luong admits that she commenced as a volunteer, although she has no recall of the program managed through WISE and submits, she was employed as a project manager and board member until her termination of employment. Ms Luong submits that in July 2019, she signed a document confirming her management position and submits she was paid wages for her work.

[6] I conducted a hearing on 30 March 2020, and the parties were given further time to send through relevant documentation to confirm whether the engagement was subject to a work for the dole program or by way of employment.

[7] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.

Applicant’s submissions

[8] In relation to the dismissal, Ms Luong submits that sometime in August 2019, Mr Chinganya went silent, instructed staff not to let her in and to attack her. She submits police were called, and she alleges she was exited from the organisation in an inappropriate way without any letter. 5

[9] A police report was tendered dated 9 September 2019. The police attended the premises where they dealt with a physical altercation between Ms Luong and the receptionist.

[10] Ms Luong alleges that she was wrongfully terminated, harassed and subjected to race discrimination and assault 6. Ms Luong ticked the following boxes in her Form F8:

•  S.340 Protection – workplace rights

•  S.346 Protection – industrial activities

•  S.352 Temporary absence – illness or injury

•  S.358 Dismissing to engage as an independent contractor

Respondent’s submissions

[11] Mr Chinganya submits that Ms Luong was engaged under a work for the dole program. He submitted timesheets, but they did not conclusively confirm their purpose, many were incomplete, and the timesheets did not cover the whole volunteer period.

[12] He submits that COA engage persons on the work for the dole program to attract government subsidies.

[13] Other emails were sent to my Chambers in relation to their relationship which were inappropriate.

[14] Rather than providing the relevant material to support his position, Mr Chinganya suggested I could contact WISE or other relevant bodies to inform myself.

[15] Finally, he submits that it is illogical that an African organisation whose objects are to assist Africans, would hire an Asian 7. Mr Chinganya also stated that ‘Carers of Africa is an African organisation run by Africans and there is no way a non-African can be a board member’.8

Consideration

[16] General protections applications involving dismissal must be made within 21 days. There was no conclusive material submitted by either party confirming the last day Ms Luong was engaged, either as an employee or volunteer. Neither party were certain regarding the date, although Ms Luong submitted on the day of the hearing that her last day was 9 September 2019. Coincidently, this is the same day that the police were called when Ms Luong was denied entry and a physical altercation took place. If I were to accept this date, the application is 147 days late.

[17] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position.

[18] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)⁹ where it was held that:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”10

[19] I now turn to Ms Luong’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[20] The general protections involving dismissal application was lodged with the Commission on 3 February 2020.

[21] Ms Luong submits the reason for the delay was that she was mentally distressed, and also blamed the delay on the Commission.

[22] To assess whether her application was delayed by the Commission, records indicate that Ms Luong filed the following applications:

•  S.365 filed 3 February 2020 and discontinued on 5 February 2020

•  S.773 filed 3 February 2020 and discontinued on 5 February 2020

•  S.739 filed on 3 February 2020 and withdrawn on 4 February 2020

•  S.789FC filed 18 August 2019, determined 13 November 2019

•  S.604 permission to appeal lodged 2 November 2019, refused 29 January 2020

•  S.604 Appeal application lodged 2 October 2019 withdrawn 3 October 2019

[23] Ms Luong filed a number of applications and this may have led to her confusion. This application before me was not delayed.

[24] Ms Luong provided no evidence to support her submission that she was so unwell that she could not complete her application within 21 days, or to explain any period of lateness up until she filed on 3 February 2020.

[25] There is nothing exceptional in Ms Luong’s reason for the delay in filing her application. I do not consider the reasons given for the delay weigh in Ms Luong’s favour.

Steps taken to dispute the termination

[26] The communications directly between Ms Luong and Mr Chinganya lack clarity concerning this consideration. As evidenced from the emails tendered, there were many issues raised other than the termination of employment itself. It is apparent that Ms Luong is angry or disappointed with Mr Chinganya on a personal level, however, she also professes her admiration and affection for him at the same time. Communication between the two continued after the alleged cessation of employment in July 2019, which Mr Chinganya explains relates to his support for Ms Luong to open a similar organisation in Portland. The evidence does not directly relate to steps Ms Luong may have taken to dispute her termination.

[27] In relation to the events of 9 September 2019, the nature of Ms Luong’s written and oral submissions relate to how she was “assaulted” and the impact of this on her mental health. She submits she was denied entry to the premises and she does not submit that she challenged the termination.

[28] I accept there was a police report, proceedings in the Magistrates Court, a WorkCover investigation and other applications of Ms Luong in this Commission before this application was filed.

[29] I find neither party addressed this consideration adequately and therefore this consideration is neutral.

Prejudice to the employer

[30] Ms Luong misunderstood the question put to her in relation to this consideration 11.

[31] Mr Chinganya submits the lateness of the application does not cause any disadvantage or unfairness. On this basis this consideration weighs in Ms Luong’s favour.

Merits of the application

[32] Ms Luong’s application raises contraventions of the Act in respect to industrial activities, sham contractor arrangements and temporary absence. Ms Luong does not address any of these contraventions in her oral submissions or in any of the material submitted to the Commission. In relation to workplace rights, Ms Luong did not articulate how the Act was contravened. She does submit she was dismissed without reason.

[33] Mr Chinganya maintained that Ms Luong was a volunteer under the work for the dole program and ceased at the conclusion of the program in July 2019.

[34] In terms of the incident of 9 September 2019, Mr Chinganya in his oral submissions described the altercation as a jealousy between two women who vied for his attention. He submits Ms Luong came to the premises to use the computer and was denied entry by the receptionist.

[35] Ms Luong tendered a one page document footnoted as casual employment contract dated June 2018, titled Board Member Letter Notification, the main body refers to the employment of Ms Luong four days a week at five hours as manager, but it also states that payment is at the rate of share partner plus tax. A separate one-page document containing her signature of acceptance was tendered but the two documents appear unrelated.

[36] Mr Chinganya also tendered a series of emails and attachments, of which none confirmed the nature of engagement of Ms Luong, nor clarified why she was paid $700 into her personal bank account on 2 July 2019 and a further $2000 identified as outstanding wages on 29 August 2019. Mr Chinganya suggested I contact WISE and other relevant bodies to obtain the information I may require.

[37] Despite instructing the parties to refrain from sending unrelated materials after the deadline for submissions, my Chambers received numerous emails that make reference to a personal relationship between Ms Luong and Mr Chinganya after the alleged cessation of the work for the dole program in July.

[38] While, the merits were not tested, I am inclined to find there was a personal relationship between Ms Luong and Mr Chinganya, and if there was an employment or volunteer relationship, it was for a short period ending no later than 9 September 2019. Ms Luong appears to be more affected by the breakdown of their personal relationship, rather than any alleged contravention of any general protections under the Act.

[39] On this basis I do not consider Ms Luong’s chances of success to be strong. I do not consider this consideration weighs in her favour for an extension of time.

Fairness between the person and other persons in a like position

[40] Neither Ms Luong nor COA responded to this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[41] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[42] I have considered the evidence and submissions against each of the factors and collectively as set out in s.366(2), and I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Ms Luong for herself

Mr Chinganya for the Respondent

Hearing details:

2020
Melbourne
30 March

Printed by authority of the Commonwealth Government Printer

<PR718642>

 1   Form F8 Q1.1 and 1.2

 2   Oral submissions

 3   Form F8 Q3.1

 4   Form F8, Applicant’s Outline of Argument and oral submissions

 5   Applicant’s Outline of Argument at Q1a and b

 6   Ibid at Q1e

 7   Oral submissions.

 8   Email of Mr Chinganya dated 7 April 2020.

9 [2011] FWAFB 975.

10 Ibid at [13].

 11   Applicant’s Outline of Argument at Q1f.