Chuen-Tat Kang v Swinburne University
[2010] FWA 4176
•3 JUNE 2010
[2010] FWA 4176 |
|
DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Chuen-Tat Kang
v
Swinburne University
(C2010/263)
COMMISSIONER GOOLEY | MELBOURNE, 3 JUNE 2010 |
Application to deal with an unlawful termination dispute.
[1] This is an application by Mr Chuen-Tat Kang pursuant to section 773 of the Fair Work Act 2009 (FW Act). Mr Kang alleges that his employment was terminated on 12 April 2006 in contravention of section 772(1). Mr Kang’s application was lodged on 12 May 2010.
Background
[2] Mr Kang was a PhD student enrolled at Swinburne University. Swinburne University provided Mr Kang with a scholarship. Mr Kang’s PhD candidature and scholarship were terminated in 2006.
[3] Mr Kang filed an unfair dismissal claim pursuant to section 643 of the Workplace Relations Act 1996 on 28 August 2006. On 11 October 2006 Swinburne University filed a notice of motion to dismiss the application for want of jurisdiction, in particular that the applicant was not an employee, a notice of motion to dismiss the application as frivolous, vexatious or lacking in substance and an extension of time objection.
[4] On 4 December 2006 Commissioner Lewin held that:
“On the face of the material before me submitted by the respondent, and on the basis that the applicant failed to file the required documentation and further failed to appear on any of the listed dates, I accept the submissions of the respondent that the applicant was not an employee of the University and that no employment relationship existed. It follows that, if no employment relationship existed, no termination of employment has taken place. Accordingly there is no basis for the application.” 1
[5] Commissioner Lewin found that he did not have the jurisdiction to hear the application and dismissed the application. No appeal was lodged against this decision.
[6] This application by Mr Kang raises the same issues raised in the matter before Commissioner Lewin.
Correspondence with Kang
[7] On 14 May 2010 I wrote to Mr Kang seeking submissions in relation to his application. In particular I sought submissions on whether his application should be dismissed as the conduct he complains of predated the commencement of the FW Act. I further sought submissions on an extension of time application, the effect on any application of section 772 of the FW Act or if an application were made pursuant to the Workplace Relations Act 1996 (the WR Act) the effect of section 673 of the WR Act on the application.
[8] Mr Kang forwarded detailed submissions on 24 May 2010.
The Legislation
[9] Section 773 provides as follows:
“If:
(a) an employer has terminated an employee’s employment; and
(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee’s employment was terminated in contravention of subsection 772(1);
the employee, or the industrial association, may apply to FWA for FWA to deal with the dispute.”
[10] Section 773 of the FW Act commenced on 1 July 2009.
[11] The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides at Schedule 2 Item 11(1) as follows:
“The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR repeal day.”
Findings
[12] The conduct Mr Kang complains of occurred before the WR repeal date. As such, there is no valid application under the FW Act. Any application made by Mr Kang should have been made under the WR Act.
[13] Because of these findings it is not necessary to consider any application for an extension of time under section 774 of the FW Act. Further, as Mr Kang has not made an application under section 643 of the WR Act, it is not necessary to consider any matters that may arise under that Act including sections 673 and 647.
[14] As there is no valid application before me, the application is dismissed.
COMMISSIONER
1 Mr Chuen-Tat Kang v Swinburne University of Technology PR974771 at [45]
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