Industrial Relations Commission of New South Wales CITATION: Nguyen v. Aircom Systems Pty Limited [2004] NSWIRComm 1135 APPLICANT Hong Nguyen PARTIES: RESPONDENT Aircom Systems Pty Limited FILE NUMBER: 4515 of 2004 CORAM: Connor C CATCHWORDS: unfair dismissal - probationary employment - want of prosecution - medical certificate - costs LEGISLATION CITED: Industrial Relations Act 1996 Earl v. Tony Pollard Electrics Pty Limited (unreported) General Steel Industries Inc v. Commissioner for Railways (1964) 112 CLR 125 CASES CITED: Lewis v. Kunama Securities Pty Limited (unreported) Talbot v. Rostcom Pty Limited (1999) 99 IR 131 HEARING DATES: 02/11/2005 EXTEMPORE JUDGMENT DATE: 02/11/2005 APPLICANT No appearance REPRESENTATIVES: RESPONDENT Anna Warne Hunt and Hunt Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 11 February, 2005 Matter No IRC 4515 of 2004 Hong Nguyen and Aircom Systems Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1135 1 Ms Hong (Rose) Nguyen was employed as assistant accountant with Aircom Systems Pty Limited. She commenced employment on Thursday, 10 June, 2004 and her services were terminated on Wednesday, 14 July, 2004. She subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, seeking monetary compensation. The matter was allocated to me by the Registry staff and it was listed for conciliation and directions hearing on Thursday, 19 August, 2004. 2 Those proceedings were adjourned due to the absence of Ms Nguyen who had forwarded to me a facsimile transmission on Friday, 13 August, 2004 requesting that I reschedule the proceedings after Friday, 15 October, 2004 due to her inability to attend on the original day set down for the conciliation and directions hearing. She gave no reason at that time for the adjournment but Ms Nguyen forwarded a further letter by facsimile transmission to me on Wednesday, 18 August, 2004 to inform me that in a telephone conversation she had with solicitors representing Aircom Systems in these proceedings she had been requested to provide evidence of the reason for her unavailability to attend. In the letter she indicated that she was: "...not fit for attending to and coping with any conflicts which affect my mental health at the moment, according to my doctor's opinion..." But she provided no medical certificate to support her assertions at that time. 3 Nevertheless, I vacated the conciliation and directions hearing and set the matter down for a mention on Monday, 25 October, 2004. Again there was no appearance by Ms Nguyen who contacted my assistant shortly before the proceedings were to commence and informed her that she was again unable to attend through illness but that she still remained anxious to proceed with her claim. Ms Warne, who represents Aircom Systems in the proceedings put on record the fact that: "...we have sought some evidence, some medical evidence in relation to the delay in this matter and we have sought that on a number of occasions. It has not been forthcoming. We are here ready to proceed today...and I would like (the matter) to proceed as quickly as possible..." 4 Moreover, in its formal response, Aircom Systems has claimed that Ms Nguyen was employed on a three month probation by it which had not expired when her services were terminated. Consequently, her Part 6 application fell outside jurisdiction by virtue of Reg. 6, which, among other things, excludes: "…employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is three months or less, or (ii) if the period, or the maximum duration, is more than three months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment…" In the circumstances, I believed it was appropriate to listed the matter for hearing on that threshold jurisdictional point on Tuesday, 23 November, 2004 but that hearing was also vacated at Ms Nguyen's request. 5 Ms Nguyen, who did appear in the proceedings on Tuesday, 23 November, 2004, nevertheless continued to inform me that she was not medically fit to address the issues in the arbitrated proceedings at that time due to a stress related illness but she denied strenuously that she had been engaged on a probationary basis. I was obviously concerned at the delay in progressing this matter but believed that I had no alternative but to adjourn the proceedings again to permit Ms Nguyen to recover from her current medical problems so that she may put a proper argument forward in support of her Part 6 application. I rescheduled the hearing of the matter for Friday, 11 February, 2005. 6 On Tuesday, 23 November, 2004 Ms Warne had provided Ms Nguyen with two affidavits to support the claim made by Aircom Systems that she had been engaged on a probationary basis. Ms Nguyen had been interviewed for the accounting position with Aircom Systems by Ms Julie Orton, an accounting manager for an employment agency which had been engaged by Aircom Systems to assist in recruiting staff. Mr Grahame Crammond, the finance director of Aircom Systems, who had also interviewed Ms Nguyen for the accounting position (a second interview) on Friday, 28 May, 2004 asserted in his affidavit that: "We start at 8.30am and finish at 5.00pm. If you are successful, the usual terms and conditions would apply. There would be a three months probation period which means either you or the company can terminate on one week's notice . You will also be entitled to the normal four weeks annual leave with loading." And Ms Orton has asserted in her affidavit that when she had spoken to Ms Nguyen on the telephone on Friday, 4 June, 2004 she had informed her that: "This is an offer of permanent employment. You will be paid $50,000.00 base salary plus the statutory 9% superannuation. The start date is Thursday, 10 June, 2004 at 8.30am and the normal business hours for this role are 8.30am to 5.00pm. This offer of employment is subject to a three month probationary period where either side can terminate the agreement with one week's notice ." 7 Ms Nguyen's assertion that she was not employed on a probationary basis, unsupported by anything other than her emphatic denial, cannot stand against the affidavits of Mr Crammond and Ms Orton. For Reg.6 to have effect, of course, the dismissed employee must have been informed that she was engaged on a probationary basis in advance of the employment. As I indicated in my unreported decision of Tuesday, 5 October, 2004 in Earl v. Tony Pollard Electrics Pty Limited [Matter No.IRC 7138 of 2003 at p.3] if an employee is not informed of a probationary period, and accepts it, prior to the employment contract commencing Reg.6 has no effect. But according to Mr Crammond and Ms Orton, whose affidavits I accept as accurate, Ms Nguyen was certainly informed of the fact that her employment with Aircom Systems was probationary prior to her commencing employment. I am satisfied that her Part 6 application must fail on jurisdictional grounds. 8 In any event, Ms Nguyen did not attend the hearing on Friday, 11 February, 2005. Late on Thursday, 10 February, 2005 she had forwarded a further memorandum by facsimile transmission, viz: "...Dear All... I won't be able to attend the appointment tomorrow. Please inform Aircom Systems and reschedule another time..." Attached to the memorandum is a copy of a medical certificate from an attending medical practitioner which I have not found altogether satisfactory as supporting of Ms Nguyen's absence from the hearing on Friday, 11 February, 2005. 9 The medical certificate is in a form which gives the medical practitioner a range of options in separate boxes. The medical practitioner has ticked one of the boxes to the effect that Ms Nguyen: "...Did not attend work; this was not work related..." The medical certificate then describes an unspecified "medical condition". There is then a space on the form to indicate the days on which absence from work is excused on medical grounds but that remains blank. There is then the following statement on the medical certificate: "Whilst not symptomatic on presentation, if the patient had symptoms as described (this cannot be verified), these would have been consistent with the patient not being able to attend for work/school. This does NOT constitute a medical certificate for the following days..." And immediately thereafter is a space for the days in question. The medical practitioner has filled in those days - Thursday, 10 February, 2005 and Friday, 11 February, 2005. But in the circumstances, the medical certificate does not appear to me to excuse Ms Nguyen from attendance in these proceedings at all. On the basis of the medical certificate, it was clearly not the intention of Ms Nguyen's attending medical practitioner to excuse her from attending work or, implicitly, these Part 6 proceedings. 10 Ms Warne has submitted that, in the circumstances, I should dismiss Ms Nguyen's Part 6 application for want of prosecution on her part pursuant to Rule 146. Whilst I appreciate that, wherever possible, I should attempt to accommodate a party with a medical condition and adjourn proceedings on requests made on that ground, the history of this matter suggests to me that Ms Nguyen is simply unfit - or unwilling - to present any cogent argument in support of her Part 6 application. I believe that Aircom Systems has been very patient with her but that this matter has now run its course. I see no good purpose being served by this matter remaining alive for the further inconvenience of Aircom Systems, especially in the light of my observations that she is excluded from jurisdiction under Part 6 by virtue of Reg.6. I propose to dismiss the Part 6 application on that basis. 11 An application for costs has also been made by Ms Warne. Costs before a single member of the Commission is governed by S.181(2), viz: "However, the Commission when it is not in Court Session may award costs only in the following cases: (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals), who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or (d) the Commission may award costs in proceedings for a breach of an industrial instrument or the recovery of money under Chapter 7, as provided by Ss.357 and 373." 12 Initially, Ms Warne argued for costs under both Ss.181(2)(b) and (c) but I explained to her that S.181(2)(b) was not available for Part 6 proceedings and costs for Part 6 applications were confined to S.181(2)(c) alone, ie an unreasonable failure to agree to a settlement of a claim or a frivolous or vexatious claim [see for instance Talbot v. Rostcom Pty Limited (1999) 99 IR 131 at p.133]. In my unreported supplementary decision of Tuesday, 13 May, 1997 in Lewis v. Kunama Securities Pty Limited [Matter No.6035 of 1996] I explained the position in the following manner (at p.3): "…It is an established rule of construction for statutes and instruments that any provisions of a general application give way to specific provisions - generalia specialibus non derogant. I read S.181(2)(c) as a separate head and any application for costs in Part 6 proceedings is confined to it alone…" 13 I understand that a modest sum (one week's salary) was offered to Ms Nguyen. I would not be prepared to accept Ms Nguyen's refusal to accept that offer as constituting an unreasonableness on her part for the purposes of S.181(2)(c) but I am satisfied that her Part 6 claim was frivolous and/or vexatious and, as such, justifies an application for costs made on behalf of Aircom Systems. 14 A frivolous or vexatious action is one where the party bringing it is not acting in good faith and merely seeks to annoy or embarrass an opponent or which is not designed to produce any practical result. In order to bring a case within the description of frivolous or vexatious it is not sufficient merely to say that the applicant has no cause of action. It must appear that the cause of action is, on the face of it, clearly one which no reasonable person could properly treat as bona fide and contend that she had a grievance which she was entitled to bring before the court. To use the language of Barwick CJ of the High Court in General Steel Industries Inc v. Commissioner for Railways (1964) 112 CLR 125 at p.129: "…so obviously untenable that it cannot possibly succeed; manifestly groundless; so manifestly faulty that it does not admit of argument; discloses a case which the Court is satisfied cannot succeed; under no possibility can there be a good cause of action; so manifest that to allow them (the pleadings) to stand would involve useless expense…" 15 In the light of the established probationary nature of her employment with Aircom Systems, the fact that was clearly explained to her, and her conduct in this hearing, I am satisfied that Ms Nguyen's Part 6 application falls under those comments. 16 Costs are ordered against Ms Nguyen as agreed or assessed in accordance with the provisions of the 1987 Legal Profession Act to be payable to Aircom Systems within 28 days of this decision. P J CONNOR Commissioner . 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