Dr Guohua Liang v UTS's employee, Anne Dwyer

[2019] FWC 4513

[2019] FWC 4513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Guohua Liang
v
UTS’s employee, Anne Dwyer
(U2019/5315)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 13 May 2019, Dr Guohua Liang filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy which, for reasons that will become apparent, I will hereafter refer to as the Third Application.

[2] Dr Liang had previously lodged a general protections FWC applicationunder s. 365 of the Act for the Commission to deal with a dispute that relates to dismissal (First Application) on 2 April 2019. The First Application was given the matter number C2019/2143.

[3] The Commission’s records also indicate that on 10 May 2019, Dr Liang filed an application with the Commission pursuant to s.394 of the Act for an unfair dismissal remedy (Second Application). This application was given the matter number U2019/5282.

[4] In the First Application, Dr Liang had outlined that:

•  University of Technology Sydney (UTS) (ABN 77 257 686 961) was the Respondent (the employer);

•  Ms Anne Dwyer was the contact person of the Respondent;

•  she began working for the employer in March 2005;

•  she was notified of her dismissal on 12 March 2019;

•  her dismissal took effect on 12 March 2019; and

•  she sought reinstatement, compensation, a penalty and pecuniary penalty to be imposed.

[5] In the Second Application, Dr Liang outlined that:

•  Ms Anne Dwyer and the University of Technology Sydney (UTS) (ABN 77 257 686 961) were the Respondent (the employer);

•  Ms Anne Dwyer was the contact person of the Respondent;

•  she began working for the employer on 28 February 2005;

•  she was notified of her dismissal on 12 March 2019;

•  her dismissal took effect on 12 March 2019; and

•  she sought reinstatement, continuity of employment, compensation, an order for payment for work performed marking student assignments and a penalty and pecuniary penalty to be imposed.

[6] In the Third Application, Dr Liang outlined that:

•  UTS’s employee, Anne Dwyer (ABN 77 257 686 961) was the Respondent (the employer);

•  Ms Anne Dwyer was the contact person of the Respondent;

•  she began working for the employer on 28 February 2005;

•  she was notified of her dismissal on 12 March 2019;

•  her dismissal took effect on 12 March 2019; and

•  she sought reinstatement, continuity of employment, compensation, an order for payment for work performed marking student assignments and a penalty and pecuniary penalty to be imposed.

[7] Dr Liang having advised in the Form F2 - Unfair dismissal application for the Third Application that the dismissal took effect on 12 March 2019 and it having been made on 13 May 2019, the Third Application was therefore lodged 41 days late.

[8] Further, the Third Application was made without either payment of the application fee or an application for its waiver. This prompted a letter to be sent to Dr Liang dated 13 May 2019 requiring her to address this. There was also a telephone conversation between a member of the Commission’s staff and Dr Liang on 13 May 2019. In this conversation, Dr Liang advised she had lodged a Form F80 – Fee Waiver Application (F80) with the Second Application and had been advised by Commission staff that she was not required to lodge another F80. Dr Liang was advised by the Commission staff member that she may wish to seek independent legal advice regarding making multiple applications and the correct Respondent name. The Commission’s file also indicates that Dr Liang was also sent an application form for the Commission’s Workplace Advice Service (WAS).

[9] On 17 May 2019, Dr Liang telephoned the Commission. During this conversation the process of amending the name of a Respondent in an unfair dismissal application and that it was only possible to name an employing entity (and not an individual) as a Respondent were discussed. Dr Liang was advised there were issues with both the Second Application and the Third Application and that she could discontinue the latter. Dr Liang was directed to the Commission’s Unfair Dismissal Benchbook.

[10] The Commission telephoned Dr Liang on 21 May 2019 and discussed matters with the assistance of an interpreter. During this conversation, it was outlined to Dr Liang that she could only have one application relating to her dismissal and that an application can only name one Respondent. Before Dr Liang elected to terminate the phone call, she had also been directed to pages 138 and 139 of the Commission’s Unfair Dismissal Benchbook. These pages provide information on the following topics:

•  Who is the Employer?;

•  How can you find out?;

•  What if you get it wrong?; and

•  Multiple Actions.

[11] On 6 June 2019, correspondence was sent to Dr Liang by email, stating:

“The Fair Work Commission (the Commission) received an application for unfair dismissal remedy from you on 13 May 2019 in relation to your employment with UTS's employee, Anne Dwyer.

As discussed and confirmed during our telephone conversation of 13 May 2019, employees must be employed by a national system employer to make an application for an unfair dismissal remedy. The Respondent is the employer (business) that pays your wage.

From the information you have provided, it appears that UTS's employee, Anne Dwyer is an individual employee of the University of Technology Sydney and appears to not be a national system employer.

You should urgently seek further advice as to whether your application is valid. Contact details for Community Legal Centres in your State/Territory are attached.

Upon obtaining advice, if you are satisfied that you are not eligible to pursue your application with the Commission, you must complete the Form F50 – Notice of Discontinuance, send an email or advise the Commission by telephone that you no longer wish to pursue your application. It is important to note that discontinuing an application means that the matter cannot be pursued at a later time.

If you do not contact the Commission within 14 days of the date of this letter, your application may be dismissed without further notice…”

[12] A number of attempts to telephone Dr Liang were made on 13 June 2019. The calls were not answered.

[13] On 21 June 2019, Dr Liang sent an email to the Commission which stated:

“Anne Dwyer is an individual employee of the University of Technology (UTS), and the employee organization is a National System Employer.

Therefore, for this case, the employer organisation should be used as the employer for this application.

I would like to amend the application, by adding ss 772 (1) (e), 773 to the application. Which form should I use?

Thanks…”

Consideration and Conclusion

[14] I am not persuaded to amend the Third Application so that the University of Technology (UTS) is named as the Respondent. It serves no purpose to do so because Dr Liang has already named the University of Technology Sydney (UTS) as a Respondent in the Second Application.

[15] Further, I am not persuaded to amend the Third Application by adding either s.772(1)(e) or s.773 to it. The Commission’s power pursuant to s.586 of the Act to amend an application cannot be used to convert, “correct” or “amend” an application for unfair dismissal into an application under s.773 of the Act. 1

[16] Ultimately however, Dr Liang has not provided material that persuades me that she has named a national system employer as the Respondent to the Third Application.

[17] The unfair dismissal provisions under the Act are contained in Part 3-2. Under Part 3-2, “employee” means a national system employee and “employer” means a national system employer. 2 A national system employee is defined at s.13 of the Act as follows:

“13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.”

[18] A national system employer is relevantly defined as follows at s.14(1) of the Act:

“14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”

[19] In considering the above, I am satisfied that the Commission has no jurisdiction to determine the Third Application as Ms Dwyer was not a national system employer at the time of Dr Liang’s dismissal and therefore Dr Liang was not a national system employee for the purpose of Part 3-2 of the Act at the relevant time.

[20] Section 587(1) of the Act provides as follows:

“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.”

[21] Having regard to the circumstances of this matter, I am satisfied the Third Application has no reasonable prospects of success. As such, Dr Liang’s application pursuant to s.394 of the Act for an unfair dismissal remedy filed with the Commission on 13 May 2019 is dismissed pursuant to s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

[22] The First Application, being Dr Liang’s general protections FWC application lodged on 2 April 2019, remains on foot and needs to be dealt with in accordance with the Commission’s powers and processes.

DEPUTY PRESIDENT

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 1   Ioannou v Northern Belting Services Pty Ltd[2014] FWCFB 6660 at [22].

 2   Fair Work Act 2009, s.380.