Ho Kuen Choi v Pantry and Larder Pty Ltd

[2023] FWC 1491

[2023] FWC 1491

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ho Kuen Choi
v

Pantry and Larder Pty Ltd

(U2023/1783)

DEPUTY PRESIDENT EASTON SYDNEY, 21 JUNE 2023

Application for an unfair dismissal remedy – s.399A application to dismiss – application granted.

1. On 5 March 2023 Mr Choi made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Pantry and Larder Pty Ltd.

1. Mr Choi and Pantry and Larder Pty Ltd both filed evidence prior to the Hearing scheduled for 9 June 2023.

1. Ms Beverley Hurvitz appeared on behalf of Pantry and Larder at the hearing and Mr Choi did not appear and was unable to be contacted on the day.

1. At the hearing Pantry and Larder asked for the matter to be dismissed. Pantry and Larder was invited to make a formal application under s.399A of the Fair Work Act 2009 (Cth) (FW Act) using the Commission’s Form F1. Pantry and Larder did so later that day.

1. Directions were issued requiring Mr Choi to provide submissions and evidence addressing Pantry and Larder’s application.

1. Mr Choi did not file any material by the time directed or at all.

1. Section 399A of the FW Act provides:

“399A               Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

…

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

1. The relevant principles to consider Pantry and Larder’s application under s.399A were helpfully summarised in Lockyear v Graeme Cox[2021] FWCFB 875 (Lockyear) at [57]:

“[57] In respect of the process that should be observed before the Commission considers dismissing an application under s.399A(1), we note the following:

1. An application under s.399A must be made by a party in accordance with the Rules by filing and serving a Form F1. Where an application is made other than by a Form F1 (including in writing or orally), the Commission may waive compliance with the Rules pursuant to s.586 of the FW Act and accept the application.

2. The responding party must be served with a copy of the s.399A application and be given an opportunity to respond to it. The question of whether further material is required before such an opportunity is provided will depend upon the content of the s.399A application.

3. The Commission should advise the parties that should the responding party fail to address the s.399A application, the Commission may proceed to deal with the application on the material before it and that this may result in the dismissal of the claim for unfair dismissal remedy.

4. In circumstances where the responding party files material opposing the s.399A application, the applicant must be given an opportunity to advance any further material in support of its s.399A application, including by addressing the matters raised by the responding party.

5. A conference or hearing may be required where there are facts in dispute and in many cases a short oral hearing will be the most expeditious way of dealing with a s.399A application.”

1. In the s.399A application there are no facts in dispute that require the Commission to conduct a hearing to determine Pantry and Larder’s application (per s.397).

1. Section 399A(2) is obviously satisfied by Pantry and Larder’s application. Similarly, s.399A(1)(a) is satisfied by Mr Choi’s failure to attend a hearing held by the Commission. The jurisdictional pre-requisites are met for Mr Choi’s application to be dismissed (per Lockyear at [55]) and it is a matter of discretion whether I do so.

1. The power to dismiss a substantive application should only be exercises cautiously and sparingly because it results in the complete extinguishment of an applicant’s right to have their application heard and determined according to the law before they have had their ‘day in court’ (per John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station [2019] FWCFB 2925 at [31]).

1. Numerous attempts have been made to contact Mr Choi since the hearing but to no avail.

1. In these circumstances, I see no utility in allowing Mr Choi’s claim to continue and I therefore grant Pantry and Larder’s application under s.399A.

1. An order giving effect to this decision will be issued separately (PR763470).

DEPUTY PRESIDENT

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