Likuang Liang v Changjiang International Express Pty Ltd
[2024] FWC 1986
•26 JULY 2024
| [2024] FWC 1986 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Likuang Liang
v
Changjiang International Express Pty Ltd
(U2024/1996)
| COMMISSIONER CRAWFORD | SYDNEY, 26 JULY 2024 |
Application for an unfair dismissal remedy
On 23 February 2024, Likuang Liang filed a Form F2 unfair dismissal with the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act). The respondent employer named in the application is Changjiang International Express Pty Ltd: ACN: 166 865 863 (Changjiang Express). Mr Liang’s application stated he was dismissed effective 1 January 2021.
On 22 March 2024, Changjiang Express filed a Form F3 employer response. The response raised a jurisdictional objection on the basis that Mr Liang was never employed by Changjiang Express.
I listed Mr Liang’s application for Mention/Directions via video on 23 April 2024. An interpreter was booked to assist Mr Liang. Changjiang Express argued during this proceeding that they had reviewed their records and found no evidence that Mr Liang ever worked for Changjiang Express. Changjiang Express suggested Mr Liang was likely employed by a different entity, CJ Express Sydney Pty Ltd: ACN: 611 108 948 (CJ Express).
After the Mention/Directions proceeding, there was substantial correspondence between Mr Liang and my chambers concerning which entity he was employed by. Mr Liang filed a significant number of documents with the Commission to try and clarify who the relevant employer was. These documents included:
(i)A letter to Mr Liang from the Fair Work Ombudsman (FWO) dated 14 April 2023. The FWO’s letter confirms Mr Liang was assisted by the FWO in relation to a complaint about outstanding entitlements from his employment with CJ Express. The letter indicates the FWO’s assistance led to Mr Liang being paid an additional $7,194.74 gross.
(ii)An extract from Mr Liang’s superannuation account statement with AMP. The statement refers to a contribution made to Mr Liang’s fund by CJ Express on 26 April 2022.
After reviewing the material filed by Mr Liang, I formed the preliminary view that Mr Liang worked for CJ Express and not Changjiang Express. I then conducted a search of business records maintained by the Australian Securities & Investments Commission (ASIC). ASIC’s records indicate that CJ Express was deregistered as a company on 11 September 2023.
Section 601AD of the Corporations Act 2001 confirms a deregistered company ceases to exist. The only way to pursue legal proceedings against a deregistered company is to apply to have the company reinstated. Directors can remain liable for things done prior to the deregistration, however, that is not relevant to the unfair dismissal jurisdiction under the FW Act. Given CJ Express has clearly been deregistered, I formed the view that there was no utility in exploring an amendment to Mr Liang’s application to identify CJ Express as the correct employer.
After these issues had been identified, an email was sent by my chambers to Mr Liang on 29 April 2024. The email identified that there was no evidence Mr Liang ever worked for Changjiang Express and the evidence he had provided indicated he was employed by CJ Express, which is now deregistered. The email requested that Mr Liang confirms whether he wishes to discontinue his unfair dismissal application.
Mr Liang did not discontinue his application and proceeded to file further material with the Commission. Arrangements were subsequently made for Mr Liang to access the Commission’s Workplace Advice Service. After our chambers was informed the free appointment had occurred, further correspondence was sent to Mr Liang seeking an update on what he wanted to do with his application. On 10 July 2024, Mr Liang sent an email indicating that he did not agree to discontinue his application and that he hoped the Commission can “investigate the employer’s illegal behaviour.”
Later in the day on 10 July 2024, an email was sent from my chambers to Mr Liang. The email indicated the Commission does not have a broad power to conduct investigations in response to an unfair dismissal application. The email indicated my provisional view is that Mr Liang’s application should be dismissed because it has no reasonable prospects of success. Mr Liang was provided with a final opportunity to file material in opposition to my provisional view. No further relevant material was provided by Mr Liang.
I am satisfied Mr Liang’s unfair dismissal application was filed around three years after the 21-day filing period ended against a company that he was never employed by. I am satisfied there is no utility in allowing Mr Liang to amend his application to identify CJ Express as the correct employer because that company has been deregistered. In the circumstances, I am satisfied on my own initiative that Mr Liang’s application has no reasonable prospects of success and that I should dismiss the application pursuant to s.587(1)(c) of the FW Act.
Mr Liang’s unfair dismissal application is dismissed.
It is apparent that Mr Liang feels particularly aggrieved at his treatment by a group of companies that may include Changjiang Express and CJ Express. Mr Liang has already been provided with substantial assistance from the FWO to resolve his concerns. If Mr Liang wishes to continue pursuing his grievances, the Commission’s unfair dismissal jurisdiction is not the appropriate mechanism.
COMMISSIONER
Determined on the papers.
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