Lester Lee v Powerark Solar Pty Ltd (PKF Melbourne)

[2023] FWC 181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lester Lee
v

Powerark Solar Pty Ltd (PKF Melbourne)

(U2021/8527)

COMMISSIONER BISSETT

MELBOURNE, 20 JANUARY 2023

Application for an unfair dismissal remedy

On 22 September 2021 Mr Lester Lee (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging he was unfairly dismissed by Powerark Solar Pty Ltd (PKF Melbourne) (the Respondent).

On 11 October 2021 the Commission was made aware that the Respondent had entered external administration. On 13 October 2021 Mr Lee was sent correspondence advising him that his matter cannot proceed without leave of a Court.

On 6 January 2023 the Commission sent correspondence to Mr Lee’s nominated email address advising him that his matter is at risk of being dismissed as it is apparent he does not intend to seek the leave of the Court. Mr Lee was asked to reply by 12.00 pm 13 January 2023.

The Commission has not received any correspondence from Mr Lee.

Section 587 of the FW 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.

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Mr Lee, I am satisfied that Mr Lee’s application has no reasonable prospects of success.
As such, I order that the application be dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

Lester Lee brought an application for remedy for unfair dismissal against Powerark Solar Pty Ltd (PKF Melbourne) under section 394 of the Fair Work Act 2009. He alleged that he was unfairly dismissed by the company. The matter was heard by the Fair Work Commission. The Respondent had entered external administration, and as a result, the Commission notified Mr Lee that his matter could not proceed without leave from a Court. The Commission also advised Mr Lee that his application was at risk of dismissal due to his apparent lack of intention to seek leave from the Court. Despite being asked to respond, Mr Lee did not provide any correspondence to the Commission.

The central legal issue the Commission had to address was whether Mr Lee's application for unfair dismissal had reasonable prospects of success, given that the Respondent was in external administration and the application required leave from a Court, which Mr Lee did not seek. The Commission considered section 587 of the FW Act, which allows for the dismissal of an application if it has no reasonable prospects of success.

The Commission determined that Mr Lee's application had no reasonable prospects of success because he did not seek leave from the Court, a necessary step in the proceedings given the company's external administration. The Commission concluded that the application was effectively stalled and unlikely to proceed. Therefore, the Commission dismissed the application under section 587(1)(c) of the FW Act.

The final orders of the Commission were to dismiss Mr Lee's application for remedy for unfair dismissal. The dismissal was based on the lack of reasonable prospects of success due to the failure to seek leave from the Court, a requirement highlighted by the Respondent's status in external administration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established