Chuentat Kang v Swinburne University of Technology

[2016] FWC 3023

[2016] FWC 3023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Chuentat Kang
v
Swinburne University of Technology
(C2016/834)

A MEMBER OF THE COMMISSION MELBOURNE, 13 MAY 2016

Application to deal with contraventions involving dismissal – various jurisdictional objections, including that no valid application under the Fair Work Act 2009 – jurisdictional objection upheld – application dismissed.

[1] On 5 April 2016 Mr Chuentat Kang (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Swinburne University of Technology (Swinburne – the Respondent) on 10 May 2006 in contravention of the general protections provisions in the Act.

[2] Swinburne in its Form 8A –Response to general protections application raised several jurisdictional objections, including that there was no valid application as the conduct complained of by Mr Kang in his application predated the commencement of the Act and the WR Act repeal day. Swinburne further contended that Mr Kang’s application should be dismissed under s.587 of the Act. By way of background, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the TPCA Act) defines the term WR Act repeal date at “the day on which the WR Act repeal commences” 1, with the reference to the WR Act being a reference to the Workplace Relations Act 1996.

[3] Against that background, the Fair Work Commission (the Commission) convened a conference on 5 May 2016 to deal with Swinburne’s jurisdiction objections.

[4] For the reasons set out below, I have concluded that Mr Kang’s application has not been made in accordance with the Act. Mr Kang’s application will therefore be dismissed in accordance with s.587(1)(a) of the Act.

Background

[5] Mr Kang was a PhD student enrolled at Swinburne. Swinburne provided Mr Kang with a scholarship. Mr Kang’s PhD candidature and scholarship were terminated in 2006.

[6] Mr Kang filed an unfair dismissal claim pursuant to s.643 of the WR Act on 28 August 2006. On 11 October 2006 Swinburne filed a notice of motion to dismiss the application for want of jurisdiction, in particular that Mr Kang 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.

[7] 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.” 2

[8] 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.

[9] In May 2010 Mr Kang made an application under s.773 of the Act contending that he had been dismissed by Swinburne in contravention of s.772(1) of the Act.

[10] Commissioner Gooley, as she then was, in a decision handed down on 3 June 2010 3 dismissed Mr Kang’s application. Specifically, the Commissioner determined that:

“[16] 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.”

[11] In January 2012, Mr Kang appealed the decision of Commissioner Gooley. In a decision given ex tempore on 15 February 2012 but not published until 14 August 2013 4 the Full Bench refused to grant Mr Kang an extension of time to lodge his appeal. In its decision the Full Bench stated the following:

“[5] Mr Kang, the appellant, was a PhD student at Swinburne University. His PhD candidature and a scholarship associated with it were terminated in 2006. On 28 June 2006, he filed an application for an unfair dismissal remedy under the Workplace Relations Act 1996.

[6] On 4 June 2006, after considering submissions on the papers, Lewin C dismissed the application for want of jurisdiction on the basis that Mr Kang was not an employee.

[7] There was no appeal brought against that decision. Some years later, in May 2010, the appellant filed an application under s.773 and the matter came before Gooley C. The application related to the same dismissal that was the subject of the 2006 unfair dismissal application. Gooley C dealt with this application on the papers and delivered a decision on 3 June 2010, in which she held that there was no valid application before her and dismissed the application. The applicant filed the present notice of appeal against that decision 9 January 2012.

[8] We have taken account of the written material which Mr Kang submitted and we have taken account of his further oral submissions at the appeal hearing. Turning to the present application for an extension of time within which to which to institute the appeal, we have considered the explanation for delay in bringing this present appeal some 18 months out of time and we are not persuaded that a proper explanation for that delay has been given. Nor are we persuaded that there is an arguable case that Gooley C erred in respect of the decision that she reached. There were, in any event, compelling discretionary factors against granting that application given the earlier decision by Lewin C in respect of which there was no appeal.” (Underlining added)

[12] Mr Kang’s general protections application raises the same issue as was considered by Commissioner Gooley in respect of his unlawful termination application.

The Statutory framework

[13] Sections 365 and 587 of the Act provide as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

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.

[14] Sections 365 and 587 of the Act commenced on 1 July 2009.

[15] The TPCA Act 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.”

Conclusion

[16] As the conduct Mr Kang complains of in his general protections application occurred before the WR repeal date, there is no valid application under the Act. Any application made by Mr Kang should have been made under the WR Act. As Mr Kang’s application was therefore not made in accordance with the Act, it will be dismissed in accordance with s.587(1) of the Act. An Order to that effect will be issued in conjunction with this decision.

[17] Against that background, it is not necessary to consider the other jurisdictional objections raised by Swinburne.

 1 Item 2 of Schedule 2 of the TPCA Act

 2   Mr Chuen-Tat Kang v Swinburne University of Technology PR974771 at [45]

 3   [2010] FWA 4176

 4   [2013] FWCFB 5743

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