Baoyu Shi v Teys Australia of Wagga Wagga

[2019] FWC 6469

[2019] FWC 6469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Baoyu Shi
v
Teys Australia of Wagga Wagga
(U2019/3260)

DEPUTY PRESIDENT SAMS SYDNEY, 17 SEPTEMBER 2019

Application for an unfair dismissal remedy – failure to attend Commission convened conference – no explanation and no contact with the Commission – Commission satisfied applicant has abandoned his claim – ‘fair go all round’ – application dismissed.

[1] On 22 March 2019, Mr Baoyu Shi (the ‘applicant’) filed an unfair dismissal application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) as a consequence of his summary dismissal by Teys Australia Southern Pty Ltd t/a Teys Australia Wagga (the ‘respondent’) on 18 March 2019. As a remedy, the applicant sought to have the respondent ‘give me permanent residency and compensation’.

[2] The letter terminating the applicant’s employment reads as follows:

‘On Friday March 15th at approx. 7.30am you insisted on a meeting with our Ms. Melissa Jamieson to discuss your PR application, at this meeting you;

1. Asked if you could close the door

2. You then asked if you could close the blinds

Your request to close the door was agreed to, your request to close the blinds was not;

You then, with menace, said words to the effect; ‘if you didn’t get a PR you didn’t want to do it but then he may have to make someone dead and that might be him, people from the company (Teys) or people from the government and newspapers’

Our Ms. Jamieson then said words to the effect ‘there was no need to make comments like that and she was really disappointed as all we have tried to do is help you get better’

You then said words to the effect ‘I hope it’s not you because you are very nice’

Our Ms. Jamieson then ended the conversation and meeting with you and sent you home to await instructions for Monday.

Our Ms. Jamieson called the Police and reported the threats you had made and asked them to conduct a welfare check on you.

Later [the] same day you were contacted via telephone by our Ms. Jamieson and given a lawful and reasonable instruction not to attend work as normal on Monday but to report to security at 6.30am, you disregarded this instruction and attended work and started work as normal at approx. 5.30am.

You were sent home and later asked by telephone to re-attend a meeting later [the] same day [Monday] March 18th. You were informed this meeting was a serious matter and disciplinary in nature and you could bring a support person and we would have an interpreter present.

At this meeting you were informed, as a result of your actions on [Friday] March 15th, and your refusal to follow our lawful instructions on [Monday] March 18th, the company has decided to summarily dismiss you without notice effective immediately for serious misconduct.

You were given a copy of this termination letter and escorted [off] the premises, you were also informed that given the threats you have made to our employees, should you ever attend [the] site again the police would be called.

Any outstanding entitlements will be paid in the next pay run.’

[3] It is unnecessary for me to give further attention to the merits of the applicant’s case or the respondent’s strenuous opposition to it, as I intend to dismiss this application for the reasons set out below.

[4] In accordance with my usual practice, and given the distance involved, I listed the matter for a phone conference on 28 May 2019. Mr David Bates, Paid Agent, Workforce Engagement Solutions, was granted permission to appear for the respondent with Ms M Jamieson. Arrangements had been made to have a Mandarin interpreter available to assist the applicant. Regrettably, there was no appearance by the applicant and he could not be contacted by phone or email. The conference proceeded in his absence. Mr Bates advised that the respondent had understood that the applicant had actually left Australia that day without any intention of returning. Accordingly, I had cause to have my Associate email the applicant as follows:

‘Dear Mr Shi,

The above matter was listed for teleconference at 4pm today. There was no appearance by you, or on your behalf. The Commission had arranged for an interpreter to assist in the conference and these costs were wasted due to your non-attendance. Chambers was also informed by the Respondent’s representative that you have left the country today. His Honour requires an explanation from you as to why you did not attend the conference.

His Honour also requires a confirmation as to whether you will be proceeding with your Fair Work Commission matter. You must inform Chambers by 4pm AEST Friday 31 May 2019 as to whether you intend on proceeding with your matter. If you fail to respond to either or both of these directions by this time, the Deputy President may consider dismissing your application under s 399A or s 587 of the Fair Work Act.

For your consideration I attach a notice of discontinuance for you to sign and return in the event that you do not want to proceed with this matter.

[5] At 4:47pm that day, my Chambers received a bounce-back email from the applicant’s email address, which indicated that ‘The email account that you tried to reach does not exist’. Further, there has been no contact with the Commission from the applicant since that day.

[6] The Commission’s powers to dismiss an application are set out generally at s 587 of the Act. I set out the section below:

‘SECTION 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(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.’

[7] It has been long held by the Courts, Commissions and Tribunals that the power to dismiss a substantive application should only be exercised cautiously, not hastily, and where there is a clear basis for doing so; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]. This is because such a decision results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had, in the common vernacular, their ‘day in court’.

[8] That being said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. In the present case, the applicant has demonstrated an unwillingness to properly engage with the Commission in respect to his application by failing to attend the conference convened by the Commission, notwithstanding it would well have been in his interests to attend. The applicant has made no attempt to explain his non-attendance. There have been no communications at all from the applicant for nearly four months. Given this history, I have little confidence that the applicant will, at some future point, seek to properly, or at all, prosecute his claim.

[9] I am reminded of what Kirby J said in Allesch v Maunz (2000) 203 CLR 172. At [35]-[39], His Honour said:

‘It is a principle of justice that a decision maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.

…

… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.

Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to Act rationally in their own best interests.’ (my emphasis)

[10] In Viavattene v Health Care Australia[2013] FWCFB 2532, a Full Bench of the Commission said at [39]:

‘[39] It is apparent from the decision subject to appeal that the Commissioner had regard to Sayer v Melsteel, and made her decision following an analysis of the respondent's uncontested evidence, noting that the respondent's sworn statements and submissions contained “substantial arguments in response to the Applicant's contentions”. There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative. It is important to bear in mind that there is respondent to the application for relief and the objects of Part 3-2 (Unfair Dismissal) provide that the unfair dismissal provisions of the FW Act are intended “to ensure that a ‘fair go all round’ is accorded to both the employer and employee concerned” (s.381).’ [endnotes omitted] (My emphasis)

[11] I am satisfied that the applicant has abandoned his unfair dismissal application and it is very unlikely he intends to activate his claim at any future time. It would be an injustice upon the respondent to be left with this application open and in a state of uncertainty.

[12] Further, given that the applicant does not appear to have challenged the basis for his dismissal, as set out in the termination letter (see [2] above), I consider that the application’s prospects of success are remote.

[13] In my assessment, it would be manifestly unfair and unreasonable to subject the respondent to further time spent and cost in defending a matter which is not properly, or at all, being prosecuted by the applicant This is a telling factor in favour of making an order to dismiss this application, given the overarching Object of the Commission’s unfair dismissal jurisdiction as set out at 381(2) of the Act which states:

‘(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.’

[14] In the exercise of my discretion, I dismiss application U2019/3260, pursuant to s 587 of the Act. I so order.

DEPUTY PRESIDENT

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