Alakiir Garang Deng v Schnitz

[2022] FWC 1470

[2022] FWC 1470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Alakiir Garang Deng
v

Schnitz

(C2022/2830)

COMMISSIONER MIRABELLA MELBOURNE, 12 AUGUST 2022

Application to deal with an unlawful termination dispute.

1. Miss Alakiir Garang Deng has made an application under s.773 of the Fair Work Act 2009 (Cth) (the Act) in which she claims to have been dismissed by Schnitz in contravention of the unlawful termination provisions in Part 6-4 of the Act.

1. The Form F9 Application lodged by Ms Deng identifies “Schnitz” as being the name of the respondent. The Form F9A Response lodged in the matter states that the respondent’s name is OHL Enterprises Pty Ltd T/A Schnitz Spencer Outlet, a company which, at face value, appears to operate in Victoria.  Ms Deng advised in her Form F9 Application that she is not entitled to make a general protections court application.

1. On 19 July 2022, my Chambers issued written correspondence to Ms Deng, drawing her attention to s.723 of the Act, which provides as follows:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

1. That correspondence also noted that general protections applications may be made by an employee in relation to action taken by a constitutionally covered entity, a term which encompasses a constitutional corporation.[1] Ms Deng’s attention was drawn to the decision of Bull DP in O’Keeffe v Sucasas Pty Ltd,[2] a decision which dealt with the amendment of an unlawful termination application to a general protections application.

1. Ms Deng’s advice was sought as to whether, in view of the foregoing, she wished to pursue her application under s.773 of the Act, or whether she wished to amend her application to a s.365 general protections application involving dismissal. To date, no response has been received from Ms Deng.

1. The matter was listed for conference via Microsoft Teams at 3:30pm on 21 July 2022. When Ms Deng did not attend this conference at the time listed, my associate called the mobile telephone number provided in her Form F9 Application but could not get through to Ms Deng as the number was disconnected. Email correspondence was then sent to Ms Deng, advising that the matter is listed for conference at 3:30pm, noting that her mobile telephone number appears to be disconnected and offering assistance in connecting to Microsoft Teams for the conference. My associate waited until 3:50pm but Ms Deng did not join the conference and did not make contact with Chambers.

1. That afternoon, Chambers sent another email to Ms Deng noting that a failure to attend listings in the Commission has the potential to impact on proceedings. The email drew Ms Deng’s attention to s.587 of the Act. The email further stated that:

“If we do not receive any response from you by 4:00pm on Monday, 25 July 2022, the application may be dismissed without any further advice to you. If you do provide a response within this time, you must send an email to the Chambers of the Commissioner providing reasons as to why you did not attend the Conference listed for today.”

1. Ms Deng has not made any submissions on why this application should not be dismissed.

1. The matter was listed for mention via Microsoft Teams at 4:00pm on 27 July 2022. Again, Ms Deng did not attend the mention. My associate could not contact Ms Deng by telephone as her mobile telephone number remained disconnected. Ms Deng did not reply to an email sent by my Chambers at 4:06pm advising that the Mention is scheduled to start and requesting that she make contact with Chambers urgently.

1. Following the mention, I issued Directions to parties for the filing and service of material. Ms Deng was directed to file in the Commission and serve on Schnitz an outline of submissions, statement of evidence and any other documentary material by no later than 5:00pm on 10 August 2022. 

1. To date, Ms Deng has not filed any such materials and has not made any contact with the Commission, save for the initial email she sent lodging her application.

1. Section 587 of the Act provides that:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

1. The words “Without limiting when the FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c) of the Act.

1. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

COMMISSIONER

[1] Fair Work Act 2009 (Cth) s.338.

[2] [2016] FWC 3116.

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