Thinh Nguyen

[2014] FWC 3574

[2014] FWC 3574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thinh Nguyen
(U2014/5098)

Thanh Le
(U2014/5099)

v
Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 30 MAY 2014

Application for relief from unfair dismissal - initial or jurisdictional issues - were the applicants employees - were the applicants dismissed - effective date of dismissal - national system employer - extension of time.

[1] This decision deals with a range of initial or jurisdictional issues relating to unfair dismissal applications made by Mrs Thanh Le and Mr Thinh Nguyen with respect to their allegations of unfair dismissal by the Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australian Chapter (the Vietnamese Community School or the School).

[2] The applications were unable to be resolved through the conciliation process and were the subject of a determinative conference on 19 and 20 May 2014. They were considered together with the consent of all of the parties. Mrs Le and Mr Ngugen, whom I understand to be married, represented themselves and gave evidence at this conference. I have generally referred to Mrs Le and Mr Nguyen as the applicants. The Vietnamese Community School was represented by a voluntary community advocate, Mr Clarke and its Manager, Mrs Ha Lan also participated in the conference and gave evidence. I note that an interpreter was present for the entirety of this conference and was required to interpret the majority of the proceedings.

[3] The conference considered the following issues put by the Vietnamese Community School:

● That the applicants were not employees but were volunteers

● That the Vietnamese Community School was not an employer covered by the Fair Work Act 2009 (the FW Act)

● That, if the applicants were employees, they abandoned their employment and were not dismissed at the initiative of the Vietnamese Community School

● That, if the applicants were dismissed, their applications were lodged outside of the statutory time limit and that this time limit should not be extended, and

● That at least one of the applications was invalid by virtue of the lodgement process followed.

[4] I have considered each of these contentions on the material before me.

[5] In terms of the background to the applications, there is little that can be said that is not disputed.

[6] The Vietnamese Community School provides weekly classes to the Vietnamese Community. It is a body incorporated under the South Australian Associations Incorporations Act 1985 1and is registered by the Ethnic Schools Board of South Australia as an ethnic school authority. It receives annual funding from the South Australian Education Department based on its enrolments. Classes are run on Saturdays. There are approximately 30 people involved in teaching and associated functions at the School. The Vietnamese Community School regards teachers and support staff as volunteers but pays them a specified amount which it refers to as a gift per teaching session. Teaching is consistent with an agreed curriculum.

[7] Mrs Le taught at the Vietnamese Community School for some 13 years while Mr Nguyen has undertaken support and teaching duties for 8 years. It appears that the applicants expressed concern over the quantum of payments made to them in late 2013 and that this issue was not resolved. It is neither necessary nor appropriate that I make an assessment of this background issue.

Were the applicants employees?

[8] The evidence of Mrs Lan was that the applicants were not engaged as employees, there was no intention to form an employment relationship and that, consistent with the Fair Work Australia decision in Bergman v Broken Hill Musicians Club 2 there was never an implied or expressed employment contract.

[9] The evidence of the applicants went to working arrangements and requirements associated with the School.

[10] The requirements necessary for an employment contract have been considered by the Fair Work Commission (FWC) and various Courts on many occasions 3. I have reviewed the evidence before me in the context of the criteria generally associated with employment contracts. I consider that the applicants were employees. This conclusion is based on the following considerations.

[11] Firstly the Vietnamese Community School required a commitment from the applicants to teach or otherwise perform duties on a regular weekly basis over the course of a Term. Teaching was required to be according to a curriculum, classes were at set times and the duties and expectations of the applicants were clearly understood. The applicants were paid a predetermined amount for each weekly work assignment. They were not paid when they did not work. They were expected to advise of absences. I am not satisfied that the applicants were able to allocate their work to other people without the express approval of the School. The applicants were given payment advices which recorded payments made to them. Tax deductions and superannuation payments were not applied, presumably because the payments made to the applicants were below nominated threshold levels. The Vietnamese Community School covered the applicants for workers compensation purposes. Finally, it is clear to me that the School retained the capacity to exercise control over the functions of the applicants. For instance Mr Nguyen was required to undertake various duties such as bell ringing and the delivery of items to classrooms. A further example is that teachers were rostered for “yard duty” which involved supervision of children.

[12] Consequently, by any test, the applicants must be regarded as employees and the simple fact that the Vietnamese Community School referred to them as volunteers did not change the fundamental nature of the relationship.

Is the Vietnamese Community School a National System employer?

[13] If the applicants are employees of the Vietnamese Community School then the School itself is their employer. However the School asserts that it is not covered by the FW Act. This argument appears to be largely premised on advice that the School does not operate as a business and does not have assets or property. Section 14 of the FW Act defines a national system employer. The Vietnamese Community School is not excluded from this definition by virtue of the South Australia Fair Work Referral Legislation. The issue of how the School is run, its liquidity or asset base are not relevant to the concept of a national system employer and hence I consider that the FW Act has application to the Vietnamese Community School as an employer.

[14] This means that, in addition to establishing that the Vietnamese Community School is then obligated to apply any relevant modern award, the applicants are able to make unfair dismissal applications if they are protected from unfair dismissal. 4

Were the applicants dismissed?

[15] Section 382 states:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $129,300 from 1 July 2013”

[16] Having considered the duration and nature of their employment, and the extent to which their work is covered by modern awards, I am satisfied that the applicants are protected from unfair dismissal. However a prerequisite for pursuit of an unfair dismissal application is that the applicants must have been dismissed.

[17] Section 386 states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[18] The Vietnamese Community School asserts that the applicants effectively abandoned their employment when they failed to attend a pre term meeting on 25 January 2014 or, in the alternative, when they failed to attend the first Saturday term classes on 1 February 2014. The School asserts that the applicants were made aware of these attendance requirements by notices delivered to teachers and students late in 2013.

[19] The applicants assert that they were not given notices to this effect. Mr Nguyen’s evidence was that he advised Mrs Lan late in 2013 that he, or they, would not be present at the staff meeting because of another teaching commitment. Further, the applicants advised that they did not attend the first Saturday class because they were also teaching at another Vietnamese school and were aware that other school was not convening classes that day because it was the Vietnamese Lunar calendar celebration. Consequently they concluded that the Vietnamese Community School would not be convening classes on that day. I have accepted the evidence of Mr Nguyen that he had foreshadowed the applicants’ absence at the pre term meeting on 25 January 2014 and I have similarly accepted that the applicant’s non- attendance on the first day of the term was a misunderstanding.

[20] I have concluded that the applicants were dismissed by letter sent to their home by Mrs Lan. This letter was dated 3 February 2014 and stated: 5

“On the first week of school for 2014 both of you did not show up at the school and did not contact me to tell me why you did not come.

I would also like to take this occasion to repeat why there were no miscalculations for your salaries for the 2013 school year.

As you know if teachers are present at school for every week there will be a total of 36 weeks, but the school has been paying teachers for 40 weeks to make up for teachers attending all meetings and Vietnamese Community events.

During 2013, the school has paid the teachers as follow:

Terms 1 and 2: 21 weeks (if teachers come every week and attend all meetings)

Terms 3 and 4: 19 weeks (if teachers come every week and attend all meetings)

A total of 40 weeks

In terms 1&2/2013: Thinh was paid for 21 weeks

Thanh was paid for 20 weeks (for not attending a meeting on 19/1/2013)

In terms 3&4/2013: Thinh was paid for 18 weeks (for not attending a meeting on 6/7/2013)

Thanh was paid for 18 weeks (for not attending a meeting on 6/7/2013)

To be honest, I was not very happy when Thinh left a message saying that there was a miscalculation in his salary. Then Thanh made a call repeating that there is another miscalculation in her salary. To avoid unhappiness taking place anymore between the both of you (us) and I (Mrs Lan) due to money I have found two other people to replace your positions.

Just a few words for the both of you. Wish you all the best.”

[21] This letter further indicates that the termination of the applicants’ employment was at the initiative of the employer. It appears to be influenced by the earlier underpayment claim and at least partially based on their non-attendance at the start of the term but it represents clear advice that they had been replaced.

When was the effective date of dismissal?

[22] This letter dated 3 February 2014 confirmed that the applicants had been dismissed. It appears that Ms Lan attempted to talk with the applicants on 1 February 2014 but did not establish contact with them before the letter was received.

[23] I have taken the advice that the applicants had been replaced as the effective date of termination of employment on the approach endorsed by a Full Bench of the Australian Industrial Relations Commission in Burns v Aboriginal Legal Service of Western Australia. 6

[24] Mrs Lan’s advice was that she posted that letter on 3 February 2014. That may well have been the case.

[25] Mr Nguyen’s evidence was that: 7

“The letter of dismissal was written by the employer on Monday 03/02/2014, it came to our letter box on Thursday (06/02/2014) or Friday (07/02/2014). We are positive that letter did not come to our letter box before those days. Hence, if we count the days in which the dismissal notice is in effect it should be counted from the day we receive the letter/when it came to our attention, not the day after the letter was written. Therefore if we follow the rule of submitting our forms within 21 days, our form completely satisfies the submission conditions.”

[26] In this respect Mr Nguyen’s evidence is entirely plausible and I have decided that he should be given the benefit of any doubt such that the applicants received the letter on 7 February 2014. I have taken this to be the effective date of termination of employment.

When were the applications lodged?

[27] The two applications were lodged on the one application form on 28 February 2014. A single application fee was paid on that day. Mrs Le advised that the FWC Registry office subsequently contacted her and she returned a few days later to make a second lodgement fee payment.

[28] Notwithstanding this, on the approach which has been generally adopted by the FWC and its predecessors over many years I have taken the lodgement date as 28 February 2014. This means that the applications were lodged within the 21 day time limit specified in s.394 of the FW Act.

Conclusion

[29] For the reasons I have set out in this decision, the Vietnamese Community School objections to these applications proceeding further are dismissed and the applications will consequently be listed for consideration on the merits. An Order (PR551152) dismissing those objections will be issued as will directions specifying arrangements in regard to consideration of the merits of the applications. In the event that the parties seek that further conciliation opportunities are provided by the FWC prior to the matter proceeding on the merits, urgent advice to this effect should be provided to my office.

SENIOR DEPUTY PRESIDENT

Appearances:

T Nguyen on his own behalf.

T Le on her own behalf.

J Clarke representing the respondent.

Hearing details (Determinative Conference):

2014.

Adelaide:

May 19, 20.

 1   Exhibit V3

 2   [2011] FWA 1143

 3   See, for example, Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215 and Kitchen Design Systems Pty Ltd [2007] AIRCFB 403

 4 See s.380 of the FW Act

 5   Exhibit V1, Annexure VCS4

 6   Print T3496, para [24]

 7   Statement of Ms Le and Mr Nguyen, page 2, second to last paragraph

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551151>