Fair Work Commission|2022-01-31

Nguyet Bui v ALSCO Pty Ltd [2022] FWC 20 (31 January 2022)

s.394 - Unfair dismissal

[1] This decision concerns an application by Ms Nguyet Bui (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (FW Act). The Applicant states that she was employed by ALSCO Pty Ltd and that her dismissal took effect on 20 August 2021. The application was filed on 31 October 2021.

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made "within 21 days after the dismissal took effect", or within such further period as the Fair Work Commission (Commission) allows pursuant to s.394(3). The dismissal took effect on 20 August 2021 and the period of 21 days ended at midnight on 10 September 2021. The application was therefore filed 51 days outside of the 21-day statutory timeframe. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

[3] On 10 November 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide reasons as to why an extension should be granted, having regard to the matters in s.394(2) of the FW Act. The Vice President's Chambers also requested a completed F3 - Employer Response from the Respondent. The Applicant sought additional time to file her response and on 24 November 2021, filed a response setting out the reasons why her application was not made within the required time.

[4] The matter was allocated to me to determine and was listed for hearing on 17 December 2021. The Applicant's Form F2 application stated the Applicant required the assistance of a Vietnamese interpreter, and a Vietnamese interpreter attended the hearing and provided interpretation for the Applicant.

[5] At the hearing the Applicant confirmed that she relied on the written response provided to the Commission in relation to why a further period in which to make her application should be granted and gave oral evidence. The Respondent made submissions in opposition to a further period being granted. At the conclusion of the hearing, I informed the parties that I had decided to refuse the grant of a further period for the application to be made and gave my reasons on transcript, however I also informed the parties that I would provide written reasons for that decision if requested. The Applicant corresponded with my Associated after the hearing and I have taken that correspondence as a request for written reasons which I now provide.

[6] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made "within 21 days after the dismissal took effect", or within such further period as the Commission allows pursuant to s 394(3).

[7] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances". Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

[8] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

[9] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

[10] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

[11] The Applicant set out her explanation for the delay in her Form F2 application and in an email sent in response to correspondence from Vice President Catanzariti, which she relied on at the hearing. Essentially, the explanation provided by the Applicant is that she initially filed a Form F8 application - General Protections involving dismissal pursuant to s.365 of the Act, decided to withdraw that application and now seeks to file an application for an unfair dismissal remedy. The Applicant provided the following evidence in her response dated 24 November 2021 which states as follows:

"On 21/8/2021 I applied for advice to contact a Legal Aid attorney about unfair dismissal.

On 1/9/2021 I had an appointment with the Legal Aid lawyer who contacted me on phone 3 times, and I gave them all the information about my unfair dismissal. The lawyer informed me that the employer had to compensate me for 26 weeks. I asked Legal Aid to submit the complaint form on my behalf for which I have to pay the Legal Aid company 20%. I think the cost is too great for my financial situation because I am unemployed, so I searched for more information websites, and I found the Fair Work Commission and followed the video clip on the internet.

On 3/9/2021 I submitted Form 2 by mail express (post office Inala) to the Fair Work commission by myself.

On 7/9/2021 I found the Job Watch organization, a non-profit agency of the Australian Government to support workers relating to unfair dismissal information on the internet. They will help to correctly apply for unfair dismissal on the right form. I had contacted them on the phone however they don't have an interpreter and I find it very difficult to explain my case.

Job Watch explained to me that Form 2 is correct but Form 8 was a more detailed application to better suit my situation, including everything like unfair dismissal, due to age discrimination, impairment health problems long service leave, and I must make the decision by myself, so I think that Form 8 is better because all aspects of my case is covered in one form.

On 8/9/2021 I submitted to change Form 8 on Wednesday, September 8, 2021, instead of Form 2, which I had initially sent in.

On 14/10/2021 on a phone conciliation meeting took place between the Fair Work Commission representative, Alsco employer, United Worker Union in Australia, and me. After that from this Alsco accepted to pay me only 6 weeks because Form 8 only GENERAL PROTECTION INVOLVING UNFAIR DISMISSAL NOT FOR UNFAIR DISMISSAL

I recognized Form 8 was the wrong application to submit as it did not contain all the aspects of my dismissal for consideration and I found it very difficult to understand what to do with little help as English is not my first language. I speak Vietnamese. So

On 31/10/2021 I had apply form F50 Notice discontinuance case C2021/6195 to Fair Work Commission also I am seeking to resubmit Form F2 to the Fair Work Commission to allow me to be considered for my unfair dismissal by Alsco Pty Ltd."

[12] As set out in her response, the Applicant states she posted a Form F2 application for an unfair dismissal remedy to the Commission by express post on 3 September 2021, having received legal advice from Legal Aid on 1 September 2021. Enclosed with the application was a money order to pay the filing fee. The Applicant decided to file the application herself as she did not want to pay an additional fee for the lawyer to file the application and represent her.

[13] The Applicant then contacted JobWatch, an employment rights legal centre, seeking further advice on 7 September 2021. The Applicant states she received advice from JobWatch that while a Form F2 was correct, a Form F8 application was more suitable to her situation but could not make this decision for her. The Applicant states she then decided that the Form F8 application was more suitable.

[14] The Applicant attended the Brisbane registry on 8 September 2021 and filed a Form F8 General Protections application, instead of the Form F2 application she had posted on 3 September 2021. The Applicant advised she had express posted a money order to pay the filing fee but the Commission had not received this yet.

[15] A note on the Commission's file for the Applicant's General Protections application records that on 13 September 2021 the Applicant contacted the Commission's Helpline and advise a Client Services Representative that she had posted a Form F2 unfair dismissal application before physically filing a Form F8 general protections application and confirmed that she wanted to proceed with the general protections application not the unfair dismissal application. The file note also records that the Applicant advised that she had posted a money order which was to be used to pay the filing fee for the Form F8 general protections application. The Applicant was then advised that the money order had been received and used to pay the filing fee for the general protections application.

[16] The Applicant's general protections application was listed for Conciliation before a Fair Work Commission Conciliator on 14 October 2021. The file also indicates that on 27 September 2021 the United Workers' Union (UWU) filed a Form F53 notice of representative commencing to act and advised that it would be representing the Applicant at the conciliation.

[17] The Applicant attended the Conciliation Conference on 14 October 2021 and was represented by an officer of the UWU. The Commission's file indicates that following the Conference, the Conciliator sent correspondence to the representative and the Respondent confirming that the matter would be held until close of business on Thursday 21 October 2021 to allow the parties to consider their positions and any options put to resolve the matter.

[18] The Commission's records show the Applicant then emailed the Staff Conciliator on 22 October 2021 asking questions relating to whether she can give information to a lawyer and seeking clarification of what she had five business days to do and what the Staff Conciliator's "idea of the Commission was to solve the problem and decision for this case." On the same date, the Staff Conciliator sent an email to the Applicant noting he had attempted to contact her by telephone and attaching the letter sent to the UWU stating the file would be held until close of business on 21 October 2021. The email from the Staff Conciliator to the Applicant also stated that during the period that the file had been held, he had afforded the parties time to attempt negotiations, and that the Applicant's representative had indicated that he would contact the Respondent to discuss potential settlement. The email further records that the UWU had advised the Commission on 18 October 2021 that the Union was no longer representing the Applicant.

[19] A file note dated 25 October 2021 indicates that the Staff Conciliator then contacted the Applicant by telephone on that date and had a discussion with the Applicant with the assistance of an interpreter. The file note states the Applicant wished to reject the Respondent's offer to resolve the matter and was considering whether to request a certificate in relation to the General Protections application or to discontinue the General Protections Application and make an unfair dismissal application. The note also records the Staff Conciliator explained to the Applicant the difference between the applications, and the risk that if she files an unfair dismissal application it would be out of time and if that application was not resolved it would proceed to a determination of whether an extension of time should be granted. The file note concludes by stating that the Applicant should consider the extension of time information on the Commission's website, that the UWU was no longer representing her, and that the Applicant should seek legal advice.

[20] The Staff Conciliator followed up the telephone conversation by sending an email to the Applicant in the following terms:

I refer to our discussion today (with the assistance of an interpreter).

At your request, I attach my email of 14 October 2021 confirming I am holding onto (sic) till C.O.B. Thursday 21 October 2021. As per the email chain below the Respondent confirmed an offer to resolve of 5 weeks and requested I hold onto the file until 4 November 2021.

You have advised that you reject the offer of the Respondent of five weeks and are considering:

Firstly, whether to pursue your application for general protection by requesting a certificate (and/or request a second conference), or
Secondly, discontinue your application for general protections by filing a Form F50 Notice of Discontinuance and lodging a Form F2 unfair dismissal application. I have noted that this application will be outside the 21 day time limit. The Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application on time.

I have encouraged you to seek legal advice before determining the next step. You have advised that your union is no longer representing you and you may have the opportunity to seek advice from the community legal centre who originally gave you some advice before you lodged your application for general protection."

[21] The Commission's records then show the Applicant contacted the Commission's Help Line on 25 October 2021. A file note of that conversation states the Applicant was calling as she now wanted to pursue the unfair dismissal application instead of her general protections application and had relied on JobWatch's advice, and that the Applicant sought more compensation for her long service leave and five weeks monetary settlement but that an unfair dismissal would allow her up to 26 weeks compensation. The Applicant then said the Staff Conciliator had advised her to notify them when she had filed an unfair dismissal application. The Client Services Representative then advised the Applicant that a file note showed she had contacted the Commission on 13 September 2021 and instructed the Commission to press the General Protections application and the unfair dismissal was not entered into the system. The Applicant was then advised she may need to refile an unfair dismissal application and seek an extension of time.

[22] The Applicant then contacted the Commission again on 28 October 2021. A file note of that conversation records that the Applicant called to ask about filing a Form F2 unfair dismissal application. The Client Services Representative records in the file note that she explained to the Applicant that filing a new application would be out of time and explained the process. The Applicant is then recorded as asking whether her initial unfair dismissal application could be accepted, and the Client Services Representative advised that they could not answer this and it would be a matter for a Member of the Commission to decide.

[23] On 31 October 2021, the Applicant filed a Form F50 notice of discontinuance discontinuing her General Protections application and filed a Form F2 application for an unfair dismissal remedy.

[24] At the hearing, the Applicant gave evidence that the Respondent offered her six weeks wages to resolve the General protections application, and the Applicant believed that making an unfair dismissal application would mean she could obtain up to 26 weeks compensation.

[25] The Applicant reiterated that she spoken to JobWatch and that JobWatch told her a General Protections application would "include everything" and this is why she chose that application. I then asked the Applicant why she chose to discontinue the General protections application if this was the case, and the Applicant said the General protections was involving dismissal and she wanted to pursue an unfair dismissal.

[26] I also put to the Applicant that in her Form F8 General Protections application the Applicant asserted that she made a complaint about her superannuation and then was dismissed, and in her unfair dismissal application, she was also asserting she had been unfairly dismissed for the same reason. The Applicant responded by stating that the Respondent would not pay enough. The Applicant also reiterated that when she looked on the Commission's website she learned that she could get 26 weeks compensation for an unfair dismissal application.

[27] I put the proposition to the Applicant that she filed an unfair dismissal application because she decided she could get more compensation pursuing that application, and the Applicant accepted this proposition.

[28] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

[29] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[5]

[30] The primary reason for the delay advanced by the Applicant in her written response is that she considered the general protections application was not the right application and that because English is her second language she had difficulty understanding each application. At the hearing, the Applicant acknowledged that the primary reason for the delay was that after initially filing an unfair dismissal application and withdrawing it to file a general protections applications, she decided that filing a further unfair dismissal application would get her a better outcome. While I acknowledge that the Applicant required the assistance of a Vietnamese interpreter, I do not accept that these matters are exceptional circumstances for the following reasons.

[31] The Applicant first obtained legal advice from a Legal Aid lawyer on 1 September who advised her that she could make an unfair dismissal application. The Applicant then decided to file this application, noting that the Applicant states in her response that she was advised by the Legal Aid lawyer that making an unfair dismissal application meant the Respondent would have to compensate her for 26 weeks.

[32] On 7 September 2021 the Applicant sought further legal advice from JobWatch, after she has already posted an unfair dismissal application to the Commission on 3 September 2021. There was no explanation given for why the Applicant was seeking further legal advice at that point, having already decided to file an unfair dismissal application.

[33] After receiving that advice, the Applicant decided that a General protections application was the more appropriate application. The Applicant then attended the Commission in Brisbane to file a General Protections application and advised the Commission staff that she was not pressing the unfair dismissal application she had filed by mail, and wished to use the money order enclosed with the unfair dismissal application once it arrived in the post. According to the Commission's file, this is what eventuated.

[34] The Applicant also received further advice from the UWU, which represented her at the Conciliation Conference held on 14 October 2021. The file for the Applicant's General protections application indicates the UWU negotiated with the Respondent on the Applicant's behalf following the Conference until at least the point when an officer for the UWU advised the Conciliator on 18 October 2021 that the UWU no longer represented the Applicant.

[35] Finally, the Applicant decided not to accept a further offer made by the Respondent at some point following the Conciliation Conference and asserts that at this point she realised she had not made the right application and wished to proceed with an unfair dismissal application instead.

[36] I do not accept that the Applicant's decision to withdraw her General Protections application because she decided she had lodged the wrong application, and that an Unfair dismissal application was more appropriate, is of itself an exceptional circumstance. While I accept English is not the Applicant's first language, the Applicant had the benefit of legal advice from three sources prior to filing her unfair dismissal application: from her Legal Aid appointment on 1 September; from JobWatch on 7 September and from the UWU which represented her at the conference on 14 October 2021. On her own evidence, the Applicant was able to access the Commission's website for further information.

[37] The fact the Applicant asserts she had difficulty understanding the different applications because English is not her second language is also not, of itself, an exceptional circumstance. The Applicant was provided with an interpreter by the Fair Work Conciliator on two occasions and gave every indication that she understood the essential features of each of the applications she made.

[38] It is clear from the Applicant's conduct, her written submissions and her evidence at the hearing, that the explanation for the delay in filing the unfair dismissal application which is the subject of the present proceedings, is that she withdrew an earlier unfair dismissal application and decided to make a general protections application because she believed that a general protections application would enable her to deal with a broader range of claims. The Applicant was then dissatisfied with a settlement offer made by the Respondent in relation to her general protections application and decided that she could obtain more compensation by making an unfair dismissal application. These matters are also, of themselves, not exceptional circumstances.

[39] There is no indication that the Applicant relied or acted on incorrect advice, thereby occasioning delay with making her application. The Applicant could have made either an unfair dismissal application or a general protections application, in circumstances where she raises issues of discrimination. I note that the Staff Conciliator facilitated a telephone call with an interpreter for the Applicant on 25 October 2021 and explained to the Applicant that if she decided to file an unfair dismissal application it would be out of time and the Commission could only extend time if it was satisfied there were exceptional circumstances. An email was also sent to the Applicant on that date setting out this information. The Applicant offered no explanation as to why it took her until 31 October 2021 to file an unfair dismissal application.

[40] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[41] It is not in dispute that the Applicant was notified of her dismissal on 20 August 2021 and that it took effect from that date and the Applicant had the full period of 21 days from 20 August 2021 to file her unfair dismissal application. In all the circumstances, I consider this to be a neutral consideration.

[42] I accept the Applicant took prompt action to dispute her dismissal by making a general protections application, and subsequently, and an unfair dismissal application, and that the Respondent was aware that the Applicant disputed her dismissal. This weighs in favour of an extension of time being granted.

[43] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. Further, the delay of 51 days is significant and it is possible some prejudice to the Respondent may be caused by the delay. However, I consider this to be a neutral consideration in this case.

[44] In the matter of Kornicki v Telstra-Network Technology Group[6] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[45] I am not satisfied that the merits of the Applicant's case are so strong that it would justify this consideration weighing in favour of an extension of time being granted. After considering the material filed by the parties, it is clear that there are factual disputes between the parties which can only be resolved at a hearing. In the circumstances, this is a neutral consideration.

Fairness as between the person and other persons in a similar position

[46] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. There are many Applicants who advance as the only reason for the delay a decision to file a different kind of application who are not granted an extension of time. This consideration weighs against a further period being granted.

[47] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I was not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I was not satisfied that there were exceptional circumstances, there was no basis for me to allow an extension of time. I declined to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy was dismissed and an Order[7] to that effect issued on 17 December 2021.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[6] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

Printed by authority of the Commonwealth Government Printer

Nguyet Bui v ALSCO Pty Ltd [2022] FWC 20

At a glance

Court

Decision date

Source

Judgment (80 paragraphs)

Nguyet Bui v ALSCO Pty Ltd [2022] FWC 20 (31 January 2022)

Parties

Legislation Cited (2)