Alice (Yexu) Sun v KPMG Australia Services

[2022] FWC 1948

[2022] FWC 1948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Alice (Yexu) Sun
v

KPMG Australia Services

(U2022/5667)

COMMISSIONER CAMBRIDGE SYDNEY, 25 JULY 2022

Section 589 – Procedural and Interim Decision.

1. During the telephone Pre-Hearing Conference/Conciliation proceedings held in this matter on 18 July 2022, the applicant informed the Fair Work Commission (the Commission) that, inter alia:

1. The applicant currently resides in Shanghai, China.

2. The applicant is currently undergoing medical treatment.

3. The applicant currently does not have any anticipated date for their return to Australia.

4. The applicant intended to engage a lawyer or paid agent to assist with any further prosecution of the unfair dismissal claim.

1. A Direction was issued for the applicant to have their representative file a Notice of Commencing to Act by 4:00 pm on 22 July 2022.

1. Consequently, it was surprising that in an email sent at 9:01 am on 22 July 2022, the applicant has appeared to indicate that they will not engage a lawyer or paid agent to assist with the unfair dismissal claim, and further, the applicant opposes permission being granted for the respondent to be represented by lawyers or paid agents.

1. In this case, it is clear that the unfair dismissal claim involves a requirement that the applicant will need to establish that their resignation from employment satisfies the Meaning of Dismissed as set out in subsection 386 (1) (b) of the Fair Work Act 2009.

1. In this instance, the matter involves what is often described as a “constructive dismissal” case, and with the significant factual contests and credibility challenges that have been identified to date, the evidentiary onus upon the applicant is significant and would, on any reasonable contemplation, require their attendance in person to give evidence as a witness and to enable cross-examination from the respondent and questioning from the Commission.

1. Therefore, in the particular circumstances of this matter, the Commission is concerned to ensure that any further proceedings in this matter do not involve, inter alia, unnecessary and/or unreasonable expenditure of public funds. 

1. Therefore, so as to ensure that, (a), public funds shall not be unnecessarily or unreasonably incurred, and (b), to facilitate the proper prosecution of the unfair dismissal claim, and (c), to avoid any prospect that further proceedings in this matter may constitute an abuse of process, the Commission has determined to issue an Order to Stay proceedings pending the production of satisfactory evidence that confirms the date of the applicant’s return to Australia.

1. The Stay Order shall be issued in conjunction with but separate to this Procedural Determination.

COMMISSIONER

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