Jeremy Walton v Creprot International Pty Ltd T/A Coco Healthcare, Gui (John) Qin, Shu Qin

[2021] FWC 6401

[2021] FWC 6401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jeremy Walton
v
Creprot International Pty Ltd T/A Coco Healthcare, Gui (John) Qin, Shu Qin
(C2021/5170)

COMMISSIONER CIRKOVIC MELBOURNE, 19 NOVEMBER 2021

Application to deal with contraventions involving dismissal, jurisdictional objection – non-dismissal, objection dismissed. Application to deal with contraventions involving dismissal.

[1] On 30 August 2021 Mr Jeremy Walton (the Applicant) made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (Act) alleging contraventions of the Act associated with his alleged dismissal.

[2] His former employer, Creprot International Pty Ltd T/A Coco Healthcare, Mr Gui (John) Qin, Ms Shu Qin (the Respondents) oppose the application. They filed a response on 8 September 2021 raising a jurisdictional issue.

[3] The jurisdictional issue that the Respondents contend is that the Applicant was not dismissed from his employment.

[4] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford 1 requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.2 It is thus necessary to determine the jurisdictional issue for the Applicant’s application to proceed further.

Procedural background

In light of the failures of the Applicant and Respondents to comply with directions issued by my chambers, I have set out below the procedural background.

[5] I listed the matter for a case management conference to be held via Microsoft Teams on 7 October 2021 at 2:30pm. On the morning of the 7 October 2021 Mr Qin for the Respondents informed Chambers via phone, and later by email, that he did not wish to attend the conference if he was required to appear together with the Applicant. In response, and with the consent of the Applicant, Chambers sent email correspondence to Mr Qin offering to facilitate a conference with the Respondents being hosted in a separate virtual conference room to the Applicant, such that the parties would not have any contact. The Respondents were not in attendance at the commencement of the conference. My Chambers made several attempts to contact Mr Qin on his mobile phone, but these attempts were ultimately unsuccessful and the conference did not proceed.

[6] The conference was re-listed for 12 October 2021 at 12:30pm. A notice of listing sent from Chambers to the parties on 7 October 2021 informing them of the re-listing, and advising them that “[a] failure to attend listings in a matter and failure to comply with the Commission’s directions can result in this matter being decided without your input or opportunity to respond.”

[7] The Respondents failed to attend the conference on 12 October 2021. An email was sent from Chambers to Mr Qin for the Respondents advising that a similar conference, that is, with the parties being hosted in separate virtual rooms, would be re-listed in the near future. The Respondents replied as follows:

“…

As stated during our phone conversation on 12 Oct 2021, I will not be attending the conference if the applicant is present. This is because I believe that the method of inquiry of FWC has been unfair and unreasonable.

One the one hand, a conference was scheduled after the applicant lodged his conference. There was no correspondence with us to verify any evidence the applicant might have produced . Actually, the applicant has made an absolute nonsense claim with NOTHING substantial at all but statement or lies. Anyone would agree with me if she/he has scanned through the application (I doubt any even has done so). On the another hand, FWC has insisted and forced us to face the applicant to determine/assess our objections. (as stated in my previous email, I will be more than happy to provide you any additional info and/or clarification in terms of my objection.

While having been spent days in coping the applicant prior to his lodge of application and in preparing the responses, I believe valuable resources have been wasted caused by the applicant and FWC’s unfair and unreasonable methods of inquiries.

…”

[8] Subsequently, a notice of listing for a conference to be held on 21 October 2021 at 11:30am was sent to the parties, this being the third attempt to facilitate a conference in order to progress the matter. I also issued Directions on 12 October 2021 setting the matter for hearing in relation to the jurisdictional issue on Friday 19 November 2021 at 10:00am via Microsoft Teams and detailing the timeline for the filing of submissions and materials. A notice of listing was sent to the parties for the hearing.

[9] The Respondents did not attend the third listing of the Case Management Conference in this matter on 21 October 2021 at 11:30am despite attempts by Chambers to contact Mr Qin on his mobile phone.

[10] The Respondents did not file their material in accordance with the Directions of 12 October 2021. Chambers sent a non-compliance email to the Respondents on 27 October 2021 which contained a reminder to the Respondents that “a failure to comply with directions is likely to disadvantage the party concerned; it could result in a matter being decided without regard to that side’s argument.” The Respondents replied to Chambers by email on 1 November 2021 as follows:

“I do not have any material to file but emails thus far for my objections and all emails and text messages in screenshots have been supplied with our objections.

I am very puzzled why it takes the Fair work commission (FWC) this long to grant my objection. Ignoring our requests over the phone and emails), FWC is only interested in forcing Coco Healthcare to have a conference with the applicant (jeremy walton, JW). While FWC claims it is not to run a “mediation” but JW sent “blackmails” asking for money every time prior to those scheduled conferences.

Given JW’s background (working with a group of solicitors, he was making living by taking employers to FWC), I reserve our right to make further inquiry about

•  why did FWC took a such invalid application (no dismissal occurred to JW who has been employed for barely 2 month for a business with less than 5 employees) and a “mediation” conference was arranged straightly after his lodge of application. As a result, Coco Healthcare has to allocate significant amount resources to prepare the responses.

•  why FWC forced, again and again, Coco Healthcare to have a mediation conference with JW when assessing its application of objection. As a result, JW became increasingly demanding and abusive blackmailing for money prior to each scheduled conference.

Thus, I request FWC to grant our objection ASAP and I am more than happy to provide any further information needed.”

[11] The Applicant did not file their material in accordance with the directions of 12 October 2021. Chambers sent a non-compliance email to the Applicant on 10 November 2021 which contained a reminder to the Applicant that “A failure to comply with directions is likely to disadvantage the party concerned; it could result in a matter being decided without regard to that side’s argument.”

[12] The Applicant did not respond to the above email.

[13] Mr Qin for the Respondents responded to the above email via phone on 10 November 2021 and indicated that he had submitted all the materials he wanted to submit and that the process was a waste of time.

[14] As stated above, the matter was listed for jurisdictional objection by Microsoft Teams on 19 November 2021. My associate attempted to contact the Applicant on the mobile phone provided by the Applicant but was unable to make contact with the Applicant. My associate also telephoned Mr Qin of the Respondents who indicated he did not wish to attend the hearing and that Chambers should let him know of the outcome.

Consideration

[15] Section 365 of the FW Act provides:

“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.”

[16] Section 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact.6 “Dismissal” for these purposes (and other purposes of the FW Act) is defined in section 386(1), which provides:

“386 Meaning of dismissed.

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[17] For convenience, I note the following background matters that I have gleaned from the F8 and F8A:

•  The Respondents are manufacturers of incontinence aids;

•  The Respondents engaged the Applicant as a casual Sales Representative/Product Educator on 17 June 2021;

•  There was a dispute between the Applicant and Mr Qin on 18 August 2021 where the Applicant left work; and

•  The Applicant did not subsequently return to work.

[18] As stated above, the Respondents have made a jurisdictional objection to the Applicant’s general protections application. I have attempted to distil the essence of those objections from the Respondent’s Form F8A, noting that the Respondents failed to comply with each of the Commission’s directions as to the filing of materials and the attendance of conferences intended to progress the matter.

[19] Ground 1 set out in the Respondent’s answer to question 2.2 of the F8A, broadly relates to a number of discussions between the Applicant and Mr Qin, concerning allegations of misconduct and performance. The Respondents contend that the Applicant was not dismissed from his employment effective 19 August 2021 and that “his employment contract is still causal (sic)” 3.

[20] Ground 2 is that the Applicant “signed up as a casual Sales Representative/Product Educator, the applicant did not have regular and systematic hours because there was a great variation on his roles and hours within barely two months:” As to this point, the Respondent stated that firstly, the Applicant’s roles varied greatly since his employment in August 2021 and that his hours also varied from “A few hours a week to 26 hours a week” to “One day a week to 2, 3, 4 days a week” 4. The Applicant disputes this submission and states in an email of 19 August 2021 that he was “employed on regular and systematic hours.”5

[21] Ground 3 does not deal with any relevant matter, but rather Mr Qin’s personal health, and a proposed supervision arrangement between Mr Qin and the Applicant.

[22] As to the question of the Applicant’s employment status, I note there is no dispute that the Applicant was employed as a casual “Sales Rep/Product Educator” at the time of the alleged dismissal. I also note it is unnecessary to consider whether the Applicant met a minimum employment period in a general protections matter.

[23] The Applicant states that his employment was regular and systematic, an assertion the Respondent disputes.

[24] In directions issued to the parties on 12 October 2021, it was made clear that witnesses would be required to attend the hearing with a copy of their witness statement. Regrettably, neither party in this matter filed any witness statements or documents in support of their respective positions and I have made my conclusion on the basis of the limited material before me.

[25] There is also a contest between the parties as to the events that occurred at the workplace on 18 August 2021 and the appropriate characterisation of the surrounding events. The Applicant in his Form F8 states that he was dismissed by one of the Respondents Mr Qin which the Respondents deny. Therefore, as stated above, I have determined the matter on the limited material before me; the Applicant’s F8, the Respondents’ Form F8A Response and various emails and texts between the parties submitted by the Respondents with the Form F8A.

[26] As to the evidentiary onus, I note the comments of the Full Bench in Piyush Jain v Infosys Limited T/A Infosys Technologies Limited (Jain) that:

“In most cases the question of where an evidentiary onus (or something analogous to it) resides will be answered by asking; in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about that matter were given? The evidentiary onus will generally be the party that will fail in that event.”

[27] The material filed by the Applicant was of limited assistance in elucidating matters and I have pieced together the series of events as best I can from the material supplied by the Respondents including the F8A Response filed by Mr Qin.

Was Mr Walton’s employment terminated on the employer’s initiative?

[28] Despite alleging that the Applicant’s shifts were irregular, the Respondent concedes that he “suspended” the Applicant’s shifts. This concession supports the Applicant’s contention that his shifts were “regular”. I have reviewed the email correspondence between the Applicant and Mr Qin following the incident on 18 August 2021, particularly, the email of 20 August 2021 at 5:28 pm, and conclude that Mr Walton’s employment was terminated at the Respondents’ initiative.

[29] Accordingly, there was a dismissal within the meaning of section 386(1)(a) of the Fair Work Act.

[30] The casual nature of Mr Walton’s employment does not alter this conclusion.

Conclusion

[31] Having determined the Applicant was dismissed, he is entitled to apply under s.365 of the Act for the Commission to deal with his dismissal dispute. It is therefore worth outlining s.370 of the Act, which, in setting out the pre-requisites for the making of a general protections court application, provides an overview of the next steps for the conduct of Mr Walton’s application:

“A person who is entitled to apply under s 365 for the FWC to deal with a dispute” must not make a general protections court application (as defined in s 368(4)) in relation to the dispute unless:

(a) both of the following apply:

(i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

(ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

(b) the general protections court application includes an application for an interim injunction.”

[32] The precursor to the issuing of the required certificate under s.368(3)(a) is that the Commission must deal with the dispute by conducting a conference and reach a level of satisfaction “that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.”

[33] Finally, while I have determined the Applicant was dismissed by the Respondents and is therefore entitled to apply under s.365 of the Act for the Commission to deal with his dismissal dispute, it should be noted that the Full Court in Coles Supply Chain Pty Ltd v Milford 6made observations of the following nature regarding s.370 of the Act and the making of a general protection court application:

•  The Act establishes multiple alternate pathways for an Applicant and prospective litigants;

•  Section 370 of the Act is to be interpreted against the background that while the Commission may determine the question of a person’s entitlement to make an application to it, this may not be conclusive; and

•  This is because a Court may ultimately decline to recognise an “application” or resulting certificate granted by the Commission as valid, if called upon by a Respondent to determine a subsequent objection to the competency of a general protections court application under s.370 of the Act.

[34] For present purposes and as a result of my determination, this matter will be further allocated and a determination made by a member of the Commission as to whether a certificate under section s.368 should be issued in this matter.

COMMISSIONER

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 1 [2020] FCAFC 152.

 2   See Yi Zhang v Medlab Clinical Ltd [2021] FWCFB 2453 [1].

 3   Question 4.1, Respondent’s Form F8A response.

 4   Question 2.2, Respondent’s Form F8A response.

 5   Respondent’s F8A Appendix 6, Email exchange of 19 August 2021

 6 [2020] FCAFC 152.