Loi Toma v Workforce Variable Pty Ltd T/A Workforce International

[2018] FWC 2963

[2018] FWC 2963 [Note: An appeal pursuant to s.604 (C2018/3158) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Loi Toma

v

Workforce Variable Pty Ltd T/A Workforce International

(U2018/2283)

COMMISSIONER CAMBRIDGE SYDNEY, 24 MAY 2018

Unfair dismissal - absence of evidentiary basis to support claim - no reasonable prospects of success - application taken for collateral purposes - abuse of process - application dismissed.

1. This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 5 March 2018. The application was made by Loi Toma (the applicant) and the respondent employer was named as Workforce Variable Pty Ltd T/A Workforce International ABN: 98 102 561 034 (the employer).

1. The application indicated that the date of effect of the applicant’s dismissal was 16 February 2018. Consequently the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

1. The employer provided a Form F3 (Employer Response to Unfair Dismissal Application) which inter alia, asserted that the applicant had resigned from his employment by way of an electronic text message sent on 15 February 2018, and that the applicant was engaging in an abuse of process with the making of a vexatious application for relief from unfair dismissal. Consequently, the employer raised a jurisdictional objection on the basis that it asserted that the applicant had not been dismissed.

1. Conciliation of the claim was not attempted as the agent representing the employer advised the Fair Work Commission (the Commission) that the employer did not intend to participate in any conciliation of the matter. The employer sought to have its jurisdictional objection to the matter set down for Hearing as soon as practicable. The application was allocated to the Commission as currently constituted, and a Pre-Hearing Conference of the application was held on 20 March 2018.

1. At the Pre-Hearing Conference held on 20 March 2018 the applicant appeared unrepresented, and he was assisted by a support person, Mr Nagan. Mr D Lyons, agent, appeared by video link from Brisbane for the employer. During the Pre-Hearing Conference Mr Lyons indicated that the employer sought to have the application summarily dismissed, and Mr Lyons restated the employer’s assertion that the application represented an abuse of process involving proceedings whereby the application had no reasonable prospect of success.

1. During the Pre-Hearing Conference the applicant advised the Commission that he would engage a lawyer to represent him in further proceedings. At this time, the Commission cautioned the applicant about the apparent circumstances of the termination of his employment involving the electronic text message of 15 February 2018, a copy of which had been attached to the Form F3. The electronic text message of 15 February appeared to represent the unambiguous resignation of the applicant. The applicant indicated his intention to press ahead with the application with the assistance of lawyers that he said he would engage to represent him.

1. In the circumstances, given the nature of the jurisdictional objection raised by the employer, the Commission issued Directions involving the filing and service of evidence and other material firstly from the applicant, and subsequently from the employer. The matter was fixed for a Hearing on 24 May 2018, regarding both the employer’s jurisdictional objection and the substantive merits of the application.

1. On 23 May 2018, the Commission reviewed the filed documentary material and noted that despite the applicant’s indications during the Pre-Hearing Conference there had been no record of lawyers or paid agents commencing to act on behalf of the applicant. Further, the Commission was unable to identify any witness statement made by the applicant as part of the documentary material that had been filed. These concerns were immediately conveyed to the applicant by way of email sent at 2:52 pm on 23 May 2018.

1. At the commencement of the Hearing today, the applicant appeared unrepresented, and Mr A Burnett, barrister, sought permission to appear on behalf of the employer. The applicant raised objection to the employer being represented by lawyers or paid agents. The applicant had previously indicated his intention to be represented by lawyers or paid agents and as no advice to the contrary had been provided, the Commission decided that the requirements of section 596 of the Act had been met. In particular, the Commission was satisfied that, in the circumstances, subsection 596 (2) (c) had been satisfied as it would be unfair to not allow the employer to be represented by lawyers or paid agents taking into account fairness between the Parties. The Commission granted permission for either party to be represented by lawyers or paid agents.

1. The Commission sought clarification from the applicant regarding the apparent absence of any witness statement or other evidentiary material from the applicant himself. It appeared that the applicant included certain evidentiary material as part of the submissions that he had filed. However, the nature of this evidentiary material, even when given its most generous construction, did not provide for sound basis upon which to support a claim for unfair dismissal.

1. Mr Burnett reiterated the employer’s application to have the claim for unfair dismissal remedy summarily dismissed on the basis that it had no reasonable prospects of success.

1. Upon examination of the filed documentary material it has become clear that the application has been made and pursued without careful consideration. Further, the filed documentary material discloses that the application has been taken as a means to agitate issues regarding workplace health and safety which may or may not have some legitimacy. However, the filed documentary material does not provide any proper evidentiary basis upon which the application has any reasonable prospects of success. In addition, the making of the application for some extraneous purpose, even if that may have been commendable, represents an abuse of process.

1. Consequently, the application in this matter has no reasonable prospects of success, in addition, as the application was taken in pursuit of collateral purposes, the application is both frivolous and vexatious, it represented an abuse of process.

1. Therefore, pursuant to s. 587 of the Act, the application is dismissed. An Order confirming the dismissal of the application will be issued separately.

COMMISSIONER

Appearances:

Mr L Toma appeared unrepresented.

Mr A Burnett of Counsel with Mr D Lyons of Workplace Solutions appeared for the employer.

Hearing details:

2018.
Sydney:
May, 24.

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