s.394 - Unfair dismissal

• [1] On 15 March 2025, Ms. Thi Diem Trang Nguyen was dismissed from her employment with W AHMED & R AZIZ & F.N MELHEM (AAM).

• [2] On 14 April 2025, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. Her application was 7 days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

• [4] On 30 May 2025, I heard Ms. Nguyen's extension of time application by way of a determinative conference. Ms. Nguyen appeared and represented herself. AAM was represented by Mr. Wael Ahmed, a partner of AAM.

• [5] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.

Was the Application made within 21 days after the dismissal took effect?

• [6] The 21-day period does not include the day on which the dismissal took effect.[1]

• [7] There was some confusion in the material before the Commission as to the date Ms. Nguyen's dismissal took effect. Her application stated 18 March was her dismissal date. Her separation certificate and her submissions on the factors relevant to an extension of time stated that Ms. Nguyen's "last day of work was 15 March 2025".

• [8] At the hearing, Ms. Nguyen conceded her dismissal took effect on 15 March 2025. It follows the final day for filing the application was 7 April 2025 and ended at midnight on that day.[2]

• [9] Ms. Nguyen's application was filed at 6:15 PM (AEST) on 14 April 2025. It was made 7 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [10] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Ms. Nguyen first became aware of the dismissal after it had taken effect.

(c) any action taken by Ms. Nguyen to dispute the dismissal.

(d) prejudice to AAM (including prejudice caused by the delay).

(f) fairness as between Ms. Nguyen and other persons in a similar position.

• [11] Each of these matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.

• [12] Ms. Nguyen made written submissions on her reasons for the delay. She supplemented these submissions with oral submissions at the hearing. Mr. Ahmed who appeared for AAM made no submissions on the reasons.

Ms. Nguyen was waiting to hear about a job application she made

• [13] Ms. Nguyen's primary reason for delay was she was waiting to receive a job offer from a new employer at Pharmacy 777 in St Albans. She explained this reason in her written submissions as follows:

"I was wanting to file the Unfair Dismissal Application ... but withhold the thought because about 5 days later (about 20/03/2025) I saw a job advertisement on SEEK of Pharmacy 777 for the role of a Pharmacy Technician. I quickly applied and was called by the owner, Sam, on Tuesday 25/03/2025 for an interview on Thursday 27/03/2025. Sam then asked me to send him my Dispensing Technician certificate. I thought to myself that if I got accepted for this job then I would not file the Unfair Dismissal Application. I would call it fate such that I was meant to leave the Greater Discount Chemist at Deerpark to come and work at Pharmacy 777 in St Albans. I had always wanted to work here as it was much closer to my house, only about a 15 minutes' walk.

About 1 week after, I had been asked to come in for the work trial for 2 days and at the end of the second day I was asked to fill out my bank details. Then I came home and waited and a few days later I received the email from the pharmacist manager, Yvonne Liew, asking me to fill out the Tax File Declaration Form. At this stage, I thought I would be accepted for the job. I waited and waited for the roster of work and, to my dismay, on Friday 11/04/2025, I received the email saying that l was not being accepted for the role! ..."

• [14] A further reason she gave for the delay was the fact that she suffered anxiety and had been diagnosed with clinical depression. Ms. Nguyen had a medical certificate at the hearing dated 20 May 2025 (more than a month after the application had been filed) which amongst other things indicated she suffered from clinical depression.

• [15] Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special, or uncommon. The circumstances do not need to be unique, nor unprecedented nor very rare.

• [16] It is routine for workers who have been dismissed to apply for work with other employers. The fact she was hopeful of getting the job at Pharmacy 777 in St Albans, and it took until 11 April for her to be informed otherwise, cannot be an adequate reason for delay. Rather than waiting until she heard whether she was offered the new job, the risk averse strategy would have been to proceed to make an unfair dismissal application which could have been discontinued had Ms. Nguyen been successful in getting the job.

• [17] A self-diagnosis of anxiety is an insufficient reason for delay.

• [18] I am satisfied that Ms. Nguyen currently suffers from clinical depression. The trouble is the medical certificate she presented at the hearing (which was not received into evidence) was dated 20 May 2025, more than a month after she filed her application. I cannot, on the basis of that certificate, determine that during the period between her termination and the filing of the application she suffered from clinical depression or that this medical condition affected her capacity to file an application.

• [19] None of the reasons provided by Ms. Nguyen are adequate reasons for the delay either collectively or individually. This factor counts against an extension of time.

When did Ms. Nguyen first become aware of the dismissal after it had taken effect?

• [20] Ms. Nguyen was notified of the dismissal on 7 April 2025, a week before her dismissal. This factor is neutral in a consideration of whether to extend time.

What action was taken by Ms. Nguyen to dispute the dismissal?

• [21] Ms. Nguyen conceded that she took no action to dispute her dismissal until the filing of her application on 15 April. This factor counts against an extension of time being granted.

What is the prejudice to AAM (including prejudice caused by the delay)?

• [22] Mr. Ahmed, in his oral submissions, argued AAM would suffer a forensic prejudice because of the nine-day delay. He stated that one of the witnesses to the behaviour which led to Ms. Nguyen's dismissal had left the business and would be difficult to contact. He did concede however, that he had other witnesses to that behaviour who could give evidence should the merit proceeding go ahead.

• [23] Given other witnesses are available to AAM to cover the witness who has left, the prejudice it would suffer because of the delay is marginal. It follows this factor is neutral in a consideration of whether to extend time.

• [24] Ms. Nguyen worked in the Brimbank Pharmacy of AAM from 2 September 2024 until her termination. Her arguments that she had been dismissed unfairly were:

• The real motivation for her dismissal was that she took two days sick leave with gastroenteritis around the time she was terminated.
• In her termination meeting, the employer had relied on her dispensing the wrong medicine to a customer in late January. She had been counselled about this around the time it happened. She apologised and it never happened again. She assumed it had been dealt with. She was not warned or counselled again about it in the two and a half months between the incident and the termination.
• In her termination meeting they raised a communication problem but that is incorrect because she "understands the customers".

• [25] Mr. Ahmed made oral submissions and argued the dismissal was entirely fair:

• On the "communications issue" raised at the termination meeting, there was an ongoing problem with her listening skills. Many of the customers at the Pharmacy are from non-English speaking backgrounds or have conditions that impair clear communication. Mr. Ahmed reasoned that Ms. Nguyen did not modify her communication to take these matters into account. He stated customers and staff constantly complained about Ms. Nguyen and her communication skills.
• There had been two occasions; one in "late December/early January" and one in "late January" where Ms. Nguyen had dispensed the wrong medicine to customers. On both occasions it led to serious complaints being made to the Pharmacy by the treating doctor of each customer.
• After the second incident, the partners in the business took some time to get together and they decided that the best course was to dismiss Ms. Nguyen.

• [26] Ms. Nguyen replied she had worked in pharmacies for 13 years and had never had her communications skills questioned. She conceded she had made a serious error in relation to the incorrect dispensing of medicine in late January. She said she had apologised, and it had not happened again. She stated the late December/early January issue with dispensing the wrong medicine had never been raised with her and it had not been placed on the Incident Record at the Pharmacy.

• [27] From the submissions made in relation to the merits it appears there is a conflict on the evidence as to both the process used for the dismissal and on the veracity of the reasons the employer gives for the termination.

• [28] Until I have an opportunity to hear the sworn evidence from relevant witnesses, I cannot make a determination of the merits. The merits turn on contested facts, which require a full hearing. It is not appropriate for the Commission to resolve contested facts in an extension of time application. In the absence of a full hearing, it is not possible to make any firm assessment of the merits.

• [29] This factor is therefore neutral in a consideration of whether to extend time.

Fairness as between Ms. Nguyen and other persons in a similar position

• [30] Neither party made submissions on this issue. This factor is also neutral to a consideration of whether to extend time.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• Reasons for Delay: The reasons for delay do not provide an adequate explanation for the delay. Waiting for a job offer from a prospective employer cannot be an adequate reason to delay the filing of an unfair dismissal application. The evidence Ms. Nguyen provided both as to her anxiety and clinical depression was insufficient to satisfy me that during the period between her termination and the filing of the application she suffered from either of those conditions or that those conditions impaired her ability to file an application. Therefore, this factor counts against an extension of time under s 394(3)(a).
• Action to dispute the dismissal: Ms. Nguyen took no action to dispute her dismissal prior to filing her application. This factor counts against an extension of time being granted under s 394(3)(c).

• [31] The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• Notification of the Dismissal: Ms. Nguyen was given notice of her dismissal on 7 April 2025 before her employment was terminated on 14 April 2025. She had the benefit of the full 21-day period to lodge her unfair dismissal application.
• Prejudice to the employer: AAM made no compelling submissions that it would suffer prejudice by reason of the delay.
• Merits: On the untested and limited evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
• Fairness between persons: No submissions were made on fairness arising between Ms. Nguyen and other persons in a similar position.

• [32] I conclude the reasons for the delay under s 394(3)(a) and the failure of Ms. Nguyen to dispute her dismissal under 394(3)(c) both count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

• [33] Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[4]

Ms. Thi Diem Trang Nguyen, the Applicant, for herself.

[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] The end of the 21-day period fell on 4 April 2025, a Saturday. Section 36(2) of the Acts Interpretation Act 1901 (Cth) extends the time to the next day that is not a Saturday, a Sunday, or a holiday, which is Monday, 7 April 2025.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[4] PR787797.

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