Vanessa (Van Thi Tuyet) Nguyen v TAL Services Limited

[2024] FWC 2921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Vanessa (Van Thi Tuyet) Nguyen
v

TAL Services Limited

(C2024/5766)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 22 OCTOBER 2024

General protections application – application made within time – objection dismissed

Earlier this morning I dismissed a jurisdictional objection to this matter because it was clear that the application had been made within 21 days after the dismissal took effect. In summary, the applicant was dismissed on 25 July 2024 and lodged a s 365 application on 15 August 2024. Her email of that date to the Commission attached a form F8 which was partially incomplete, a letter from her former representative to the respondent, and correspondence with her employer from before the dismissal in which she raised complaints about her employment. On 5 September 2024, the applicant lodged a revised F8 application. The respondent contended that the first application was incomplete and therefore not a proper application, and that the second application was filed out of time. I rejected this argument. Although the form F8 was partially incomplete, it was clear from the form and the attached documents that the applicant alleged that her dismissal by the respondent was in contravention of Part 3-1 of the Fair Work Act 2009 (Act). In my view the application was in substantial compliance with the form and the procedural rules (see rule 9(5)). In any event, it is well-established that an incomplete form does not invalidate an application, because it remains capable of amendment under s 586 (see for example Shane Arch v Insurance Australia Group Services Pty Limited [2020] FWCFB 601 at [34]). The applicant confirmed that she wished to rely on both application documents and I allowed her amendment accordingly.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne (by telephone)
22 October

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Vanessa (Van Thi Tuyet) Nguyen, who brought an application against TAL Services Limited. Nguyen alleged that her dismissal by TAL Services Limited contravened Part 3-1 of the Fair Work Act 2009. This part of the Act provides general protections against unfair dismissal, among other things. The case was heard by Deputy President Colman in Melbourne on 22 October 2024.

The primary legal issue was whether Nguyen's application was made within the requisite time frame and whether it was sufficiently complete to be considered a proper application. TAL Services Limited argued that the initial application was incomplete and thus invalid, and that the subsequent application was filed out of time. The court had to determine whether the application complied with the procedural requirements set out in the Fair Work Act and the rules of the Fair Work Commission. Specifically, the court had to consider whether the application could be amended to rectify any incompleteness and whether such an amendment would still be within the 21-day statutory period.

Deputy President Colman held that Nguyen's initial application, although incomplete, was in substantial compliance with the requirements. The court noted that the application clearly indicated the basis of Nguyen's claim, and the procedural rules allow for the amendment of incomplete forms. The court further noted that an incomplete form does not invalidate an application. Nguyen's subsequent application, which was filed within the statutory period, was allowed as an amendment. The court dismissed TAL Services Limited's jurisdictional objection, finding that the application was made within the required timeframe and was sufficiently complete to proceed.

The final orders of the court allowed the application to proceed, dismissed the jurisdictional objection raised by TAL Services Limited, and permitted Nguyen to amend her initial application to include the revised F8 form. This decision ensures that Nguyen's claim against TAL Services Limited will be heard on its merits.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established