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.

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: Thinh Nguyen [2014] FWC 3574
Case: [2014] FWC 3574
Decision Date: 30 MAY 2014

CaseChat Overview and Summary

In the case of Thinh Nguyen, the applicant sought relief from an unfair dismissal claim. The dispute arose between the applicant and his former employer, a national system employer. The crux of the matter was whether the applicant was an employee of the employer, whether he was dismissed, and the effective date of the dismissal. Additionally, the application sought an extension of time for lodging the claim. The matter was heard in the Fair Work Commission.

The central legal issues revolved around the definitions of employee and dismissal under the Fair Work Act 2009. The Commission had to determine if the applicant was indeed an employee of the respondent, considering the nature and terms of their working relationship. Furthermore, the Commission needed to ascertain whether the termination of the applicant’s employment constituted a dismissal and, if so, to establish the effective date of that dismissal. The Commission also had to consider the merits of the applicant's request for an extension of time to lodge the unfair dismissal application.

In reaching its decision, the Commission examined the evidence and submissions presented by both parties. It found that the applicant was indeed an employee of the respondent, as the terms and conditions of the working relationship aligned with the definition of an employee under the Act. The Commission also determined that the applicant was dismissed, with the effective date of the dismissal being when the respondent ceased to provide the applicant with work and terminated the employment. Considering the exceptional circumstances presented by the applicant, the Commission granted the extension of time for lodging the unfair dismissal application. Consequently, the application for relief from unfair dismissal was upheld.

The Commission ordered that the respondent provide the applicant with back pay and compensation for the unfair dismissal. Additionally, the respondent was directed to pay the applicant's legal costs associated with the application. The Commission's decision underscored the importance of timely and fair resolution of employment disputes, highlighting the need for clear evidence and adherence to statutory provisions.

Orders