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

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.

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).

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Loi Toma v Workforce Variable Pty Ltd T/A Workforce Internat... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 2963
Decision Date: 24 MAY 2018

CaseChat Overview and Summary

The case of Loi Toma v Workforce Variable Pty Ltd T/A Workforce International involved an employee, Loi Toma, who sought relief for an alleged unfair dismissal against his employer, Workforce Variable Pty Ltd. The Federal Circuit and Family Court of Australia was tasked with determining the validity of Toma's claims. Toma contended that his dismissal was unfair and sought reinstatement and compensation. Workforce Variable Pty Ltd, on the other hand, argued that Toma's dismissal was justified and that his claims lacked evidentiary support.

The central legal issues before the court were whether Toma's dismissal was indeed unfair and whether there were reasonable prospects that his claims would succeed. Additionally, the court had to consider whether the application was being used for a collateral purpose and if it amounted to an abuse of process. The primary focus was on the evidence presented by Toma to substantiate his claims of unfair dismissal and whether such claims had a reasonable chance of prevailing.

In examining the evidence, the court found that Toma's claims were not supported by the available facts. The court concluded that there was an absence of an evidentiary basis to support Toma's allegations of unfair dismissal. Furthermore, the court determined that the application appeared to be taken for collateral purposes and amounted to an abuse of process. Consequently, the court dismissed Toma's application, finding that there were no reasonable prospects of success for his claims.

The court's final orders reflected its determination that Toma's application for unfair dismissal was without merit and constituted an abuse of the court process. The application was dismissed in its entirety, and Toma was not granted any relief. The court's decision underscored the importance of evidentiary support in claims of unfair dismissal and highlighted the consequences of abusing the court process.

Orders