1
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, 8 JULY 2014
Application for relief from unfair dismissal - termination of employment unfair - consideration
of reinstatement - order for compensation.
[1] On 30 May 2014 I issued a decision1 in which I dismissed a series of jurisdictional
objections to applications made by Mrs Le and Mr Nguyen (the applicants) pursuant to s.394
of the Fair Work Act 2009 (the FW Act). In summary form, I found that the applicants were
employees and not volunteers, and that they worked for the Vietnamese Community in
Australia T/A Vietnamese Community Ethnic School South Australian Chapter (“the
Vietnamese Community School” or “the School”). I found that the applicants had been
dismissed at the initiative of the School and that they had lodged valid applications within the
legislative time limits. This decision concluded that the applications would be listed for
consideration of the merits.
[2] Directions in that respect were issued and I subsequently received further submissions
and supporting material from the applicants. The matter was the subject of a determinative
conference on 24 June 2014. An interpreter was present at this conference and was required to
interpret the vast bulk of the proceedings. The applicants represented themselves at this
conference. The School was represented by Mr Austin, of counsel, pursuant to a conditional
grant of permission made under s.596(2)(a) of the FW Act. Because this grant of permission
was opposed I have summarised the reasons for this grant which I provided at this conference.
[3] Section 596(2)(a) states:
“Representation by lawyers and paid agents
[2014] FWC 4314 [Note: Appeals pursuant to s.604 (C2014/5360 &
C2014/5361) were lodged against this decision - refer to Full Bench
decision dated 21 October 2014 [[2014] FWCFB 7198] for result of
appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2014FWCFB7198.htm
[2014] FWC 4314
2
(1) Except as provided by subsection (3) or the procedural rules, a person may be
represented in a matter before the FWC (including by making an application or
submission to the FWC on behalf of the person) by a lawyer or paid agent only with
the permission of the FWC.
(2) The FWC may grant permission for a person to be represented by a lawyer or paid
agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the
complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is
unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account
fairness between the person and other persons in the same matter.
Note: Circumstances in which the FWC might grant permission for a person to be
represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty
reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources
staff while the other party is represented by an officer or employee of an industrial
association or another person with experience in workplace relations advocacy.
(3) The FWC’s permission is not required for a person to be represented by a lawyer
or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with
modern awards and minimum wages).
(4) For the purposes of this section, a person is taken not to be represented by a lawyer
or paid agent if the lawyer or paid agent:
(a) is an employee or officer of the person; or
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Registered
Organisations Act; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(c) is a bargaining representative.”
[2014] FWC 4314
3
[4] Having heard both parties’ positions relative to representation I concluded that
Mr Austin’s involvement would expedite the consideration of the matter. In this respect I
noted a significant degree of hostility between the parties and the extent to which both parties
appeared to confuse the matters to be considered in these applications with considerations
relative to claimed underpayments pursuant to the Educational Services Schools (General
Staffs) Award 2010. I concluded that the possibility of an agreed position relative to all of the
claims made by the applicants might be enhanced by Mr Austin’s involvement. In reaching
my conclusion I took into account the degree of difficulty the School had demonstrated in the
earlier matter in recognising employment issues. I also took into account the fact that the
applicants were not represented. The permission granted to Mr Austin was conditional in that
I advised that should the applicants require clarification on any of the matters raised by him I
was prepared, where possible, to assist them or to positively consider a request for an
adjournment to enable them to obtain alternative advice.
[5] The conference was adjourned for a time on 24 June 2014 to enable the parties to
consider the possibility of agreement on all the applicants’ claims. I was subsequently advised
that agreement was not possible.
[6] The Vietnamese Community School advised that it accepted the findings in my
30 May 2014 decision and, having taken advice from Mr Austin, it now conceded that the
termination of the applicants’ employment was unfair in terms of the factors set out in s.387
of the FW Act. On the basis of that concession and the information before me I consider that
the School’s dismissal of the applicants was unfair for the purposes of s.390. In that context
the issue for determination in this decision relates to the appropriate remedy.
[7] Section 390 of the FW Act states:
“When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see
Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the
circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[2014] FWC 4314
4
[8] The primary remedy is that of reinstatement to the position held immediately before
the employment termination or to another position on terms and conditions which are not less
favourable. The applicants sought reinstatement with the payment of lost remuneration. The
applicant’s claims in this respect were intertwined with underpayment claims and, in the case
of Mrs Le, with claims for payment of remuneration she lost from her other, current and
presumably primary employment, in the course of pursuing this claim. The applicants asserted
that because their dismissal was unfair and they had both been long term School employees,
they should be reinstated. They asserted that this would not involve unnecessary disruption
and that their qualifications and experience were better suited to the roles than those of the
persons employed to replace them. The applicants expressed a significant concern that, as
members of the Vietnamese community, they considered their participation in the School to
be personally important and their dismissal had caused them particular concern and distress
and loss of reputation within that community.
[9] The Vietnamese Community School position was that reinstatement was neither
practical nor appropriate. The School asserted that the relationship had been so damaged that
it could not be restored, and that changing teachers part way through the year would be
detrimental to the students. The School asserted that, if the applicants were reinstated, it
would need to dismiss the persons it had engaged to replace them, causing further distress.
Further, the School asserted that reinstatement of the applicants would create disharmony with
the teachers at the school who regarded themselves as volunteers. In this respect it provided a
declaration allegedly signed by these other teachers, in which they confirmed their volunteer
status and satisfaction with payments made to them. Accordingly, the School asserted that the
appropriate remedy in this regard was an order for compensation in lieu of reinstatement.
[10] I have considered the appropriate remedy in light of the evidence and material
provided at the initial conference and the evidence at this conference. I have had particular
regard to the evidence given by Mrs Le and Mr Nguyen and by Mrs Lan for the School, at the
conference on 24 June 2014.
[11] Mrs Le’s and Mr Nguyen’s desires to be reinstated are both understandable and
significant with particular reference to their standing in the Vietnamese community. It is clear
to me that they have both provided substantial and committed service to the School and the
Vietnamese community and that the termination of their employment and subsequent souring
of their relationship with the School is a matter of real and grave concern to them both.
[12] I have adopted the position that, as reinstatement is the primary remedy in the event of
a finding of unfairness the School bears a substantial onus to demonstrate to me that
reinstatement is not appropriate as distinct from undesirable or difficult. In this respect the
observations of the Full Industrial Relations Court decision in Perkins v Grace Worldwide
(Australia) Pty Ltd2 remain relevant:
“Trust and confidence is a necessary ingredient in any employment relationship. That is
why the law imports into employment contracts an implied promise by the employer
not to damage or destroy the relationship of trust and confidence between the parties,
without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox
CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication
is not confined to employers, it extends to employees: see for example Blyth
Chemicals Ltd v Bushell [1933] HCA 8; (1933) 49 CLR 66 at 81-2 and North v
Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281976%29%2011%20ALR%20599
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%281933%29%2049%20CLR%2066
http://www.austlii.edu.au/au/cases/cth/HCA/1933/8.html
[2014] FWC 4314
5
whether there has been a loss of trust and confidence is a relevant consideration in
determining whether reinstatement is impracticable, provided that such loss of trust
and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of
an employer, accuses an employee of wrongdoing justifying the summary termination
of the employee's employment, the accuser will often be reluctant to shift from the
view that such wrongdoing has occurred, irrespective of the Court's finding on that
question in the resolution of an application under Division 3 of Part VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed the
relationship of trust and confidence between employer and employee, and so made
reinstatement impracticable, an employee who was terminated after an accusation of
wrongdoing but later succeeded in an application under the Division would be denied
access to the primary remedy provided by the legislation. Compensation, which is
subject to a statutory limit, would be the only available remedy. Consequently, it is
important that the Court carefully scrutinise any claim by an employer that
reinstatement is impracticable because of a loss of confidence in the employee.”
[13] In adopting an approach consistent with that position I have noted the legislation now
refers to the concept of inappropriate rather than impractical. I do not consider that change
detracts from the relevance of the approach in Perkins and have, in any event, noted that later
decisions of the FWC have also adopted the approach set out in Perkins.3
[14] I have decided that the application of this approach mitigates against the reinstatement
of the applicants. In this regard I am satisfied that continued litigation relative to the
applicants’ underpayment claims is likely and will bring with it continuing ill-will between
the parties. I am also satisfied that the applicants have both confirmed their position that Mrs
and Mr Loc-Lan from the School “breach Work Place Law”,4 and they were “unlawfully
discriminated”.5 In these respects, it may be that further legal action establishes that the
Applicants are, in fact, correct, but I consider that the likelihood of substantial acrimony
between the parties who hold such firm views represents a circumstance which meets the test
in Perkins.
[15] In reaching this conclusion I have had regard to the manner of communication and
behaviour of both the applicants and representatives of the School in the course of the
conference on 24 June 2014. Again, this observation is made without apportioning fault but
simply on the basis that the relationship appears to me to be so damaged that it cannot be re-
established.
[16] Further factors are also relevant. I am concerned that the reinstatement of the
applicants could disrupt the operations of the School and the delivery of classes to students,
particularly midway through the school year. I am also concerned that the declaration6 signed
by the School teachers appears to identify the potential for disruption and conflict between the
Applicants and other teachers. Again, this statement is made without apportioning any fault in
this respect.
[17] In reaching this conclusion I have had regard to the extent to which the Applicants are
concerned at their reputation within the Vietnamese community. I have adopted the position
[2014] FWC 4314
6
that this decision may go some way toward addressing the applicants’ concerns but
reinstatement appears to me to be certain to ensure ongoing conflict.
[18] As I have concluded that reinstatement of the Applicants is inappropriate, I have
reviewed the extent to which an order for payment of compensation is appropriate in these
circumstances. I consider that to be the case. There is no dispute that the Applicants have been
unfairly dismissed and I have concluded that the circumstances in which this occurred has
resulted in lost income and difficulty in replacing that income. I have noted that the
Applicants’ work for the School involved regular casual work of around two hours duration
on a nominated afternoon each week. I am satisfied that both the applicants have other
employment, including, but not limited to their continuing long term work in another
Vietnamese school.
[19] Section 392 sets out the factors which must be taken into account in determining an
amount of compensation in lieu of reinstatement. I have considered each of these factors.
[20] In terms of the effect of the order on the viability of the Vietnamese Community
School, I have concluded that the School has limited financial resources and I have noted the
evidence of Mrs Lan to the effect that its income is derived from a Government grant and
student fees. Accordingly, whilst it was open to the School to argue that any amount has the
potential to affect its viability, no such argument was put to me and Mr Austin acknowledged
that an amount of compensation may be payable. Accordingly, I have taken it that the amount
being contemplated will not affect the viability of the School.
[21] Mrs Le has been a teacher at the School for 13 years and Mr Nguyen has been at the
school for 8 years. In each instance I am satisfied that this represents a substantial period of
service and lends support to a more significant award of compensation.
[22] Had the applicants not been dismissed I have concluded that they would both have
been likely to have remained at the School indefinitely. There are no suggestions of issues
associated with their work performance.
[23] There is limited information available to me about the efforts made by the applicants
to mitigate losses arising from the dismissals. Notwithstanding this, I have formed the view
that opportunities for work of this nature are inherently limited and that, because of their
difficulties with the English language, both applicants would find it difficult to obtain suitable
alternative employment.
[24] I have noted that the applicants’ employment at the School did not represent full-time
positions. There is no evidence before me that goes to remuneration earned by the applicants
from other employment following a dismissal. Further, the evidence does not permit a
conclusion about any income of this nature likely to be earned before the payment of any
compensation ordered.
[25] In terms of other matters that may be relevant, I have noted that the applicants remain
in dispute with the School over the application and effect of the Educational Services Schools
(General Staffs) Award 2010. The outcome of that dispute may result in an increase in
payments due to the applicants. In this respect I have noted that the School has not conceded
that it is covered by that Award. I have decided that the amount being contemplated should be
determined on the basis of the payments made to the applicants at the time of the termination
[2014] FWC 4314
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of their employment. Whilst the limited information before me tends to suggest that the
Award would have application to the applicants, I do not consider that the determination of an
amount in lieu of reinstatement should have the effect of determining an underpayment claim.
[26] I do not consider that the termination of the applicants’ employment was a
consequence of misconduct such that any amount to be ordered should be reduced
accordingly.
[27] Having considered all of the applicants’ circumstances I have concluded that, had it
not been for the termination of their employment, they would have remained in employment
indefinitely and that there are no relevant deductions from any assessment of compensation in
lieu of reinstatement. Consequently, the amount to be ordered is limited by the compensation
cap specified in s.392(5).
[28] I have reviewed this approach in the context of the methodology adopted in Sprigg v
Paul’s Licensed Festival Supermarkets7 and have arrived at the same outcome.
[29] Accordingly, I have concluded that each of the applicants should receive a gross
payment equivalent to 6 months pay, which, taking into account the normal School year
represents 20 weeks pay at the rate that was applicable at the time of the termination of their
employment. An Order (PR552590) to this effect will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
T Nguyen on his own behalf.
T Le on her own behalf.
B Austin counsel for the respondent.
Hearing details (Determinative Conference):
2014.
Adelaide:
June 24.
Printed by authority of the Commonwealth Government Printer
Price code C, PR552555
AUSTRALIA
[2014] FWC 4314
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1 [2014] FWC 3574
2 (1997) 72 IR 186, 191
3 See for example Ngyuen v IGA Distribution (Vic) Pty Ltd [2011] FWA 3354 where this approach was not challenged on
appeal and EDI Rail Pty Ltd v Rowley [2008] AIRCFB 64
4 Exhibit LN1
5 Exhibit LN1
6 Exhibit V4
7 (1998) 88 IR 21
