Thinh Nguyen v Daclo Vietnamese Ethnic School

[2017] FWC 5518

[2017] FWC 5518

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thinh Nguyen
v
Daclo Vietnamese Ethnic School
(U2017/6225)

COMMISSIONER PLATT ADELAIDE, 24 OCTOBER 2017

Application for an unfair dismissal remedy – no valid reason – dismissal harsh, unjust or unreasonable – compensation awarded.

Summary

[1] On 9 June 2017, Mr Thinh Xuan Nguyen lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Daclo Vietnamese Ethnic School (the School) which the Form F2 Unfair Dismissal Application advised took effect on 27 May 2017.

[2] The matter was arbitrated on 11 October 2017. Mr Paul Avina represented the School. Representation was granted pursuant to s.596 of the Act.

[3] There originally was a dispute about whether Mr Nguyen was protected from unfair dismissal at the relevant time pursuant to s.382 of the Act, however at the hearing the School conceded that Mr Nguyen was an employee for the purposes of this application and protected from unfair dismissal.

[4] Mr Nguyen provided a witness statement 1 and gave evidence on his own behalf.

[5] The School provided a witness statement of Mr Binh Quang Nguyen, 2 Deputy Principal of the School, who also gave evidence.

[6] The application was heard concurrently with an identical application by Ms Thanh Ngoc Le matter number U2017/6223.

[7] Mr Nguyen and Ms Le contended that they were dismissed as a result of their failure to sign a volunteer agreement. The School did not contest that allegation but contended it was unable to afford to pay employees.

[8] At the conclusion of the hearing I read my decision on transcript, and the following is an edited version of the reasons for my decision.

Findings of Fact

[9] In this matter it is accepted that the Applicants were employed by the School. There is no contest that the School required the two Applicants to enter into volunteer agreements and absent them entering into that agreement, their employment would be dismissed. 

[10] I find that the Applicants were advised of those facts on 27 May 2017 and that on 28 May 2017 both the Applicants advised the School that they would not accept that arrangement and that the School subsequently advised the Applicants that their employment would cease on 8 July 2017.

[11] The evidence given by the representative of the School, Mr Bing Quang Nguyen, was honest and forthright. He accepts that there was no reason connected with the conduct or capacity of the Applicants, that there essentially was no consultation in relation to the reasons for the dismissal, nor any opportunity to respond.  I note that the School does not have any in-house human resources staff and I make allowances for that. 

[12] The School sought that I find it was a small business and therefore that the Small Business Fair Dismissal Code would apply.

[13] There is little evidence before me which would allow me to accept that submission.  The evidence is that there are 42 persons performing similar roles to the Applicants at the School. I am unable to correlate why the School would make the concession that the two Applicants are employees how that would not lead me to believe that the other 40 persons also should be regarded as employees. I am not convinced that the School is a small business in accordance with the definition under the Act. 

[14] In any event, had I determined that the School was a small business, the circumstances before me are such that I would find that the requirements of the Small Business Fair Dismissal Code would not have been met.

[15] The second proposition put by the School was that this matter was a genuine redundancy pursuant to s.389 of the Act.  Again, the School's witness, Mr Bing Quang Nguyen, was quite candid in telling me that there had been no operational changes in relation to the School or its funding for at least 12 months leading up to the dismissal. There appears to be no evidence of any consultation and there is no evidence before me that the alternative employment was offered and it is compounded by the fact that the jobs performed by the Applicants appear to continue to exist.  I am not convinced that this matter involves a question of genuine redundancy.

[16] In terms of whether or not this matter is an unfair dismissal, the School has admitted, albeit belatedly in final submissions, that there was no valid reason for the dismissal of each Applicant. In addition, they have conceded that the termination was harsh, unjust or unreasonable and whilst it is late I am pleased that the School recognises the effect of its actions.

[17] In terms of compensation, the Applicants do not seek reinstatement and I determine that reinstatement would not be appropriate in the circumstances. 

[18] The School has advised that it proposes that the Applicants receive six months' compensation in the amount of $1,150 each and I agree with that assessment and award the same with payment to be made within seven days. The maximum compensation I am empowered to award is six months' pay and I have awarded that amount, which is $1,150.

[19] The School has also advised that it proposes to pay a period of notice as if the Applicants had worked until 2 December 2017.

[20] On 11 October 2017 I published an Order 3 giving effect to this decision.

COMMISSIONER

Appearances:

T.Nguyen the Applicant.

P.Avina of Avina Lawyers on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

11 October.

 1   Exhibit A1

 2   Exhibit R2 and R3

 3   PR 596743

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<Price code A, PR597071>