DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Hsiang-Ching Li
v
ASP Access Floors Pty Ltd
(U2020/7541)

COMMISSIONER RIORDAN

SYDNEY, 16 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 2 June 2020, Mr Hsiang-Ching Li (the Applicant) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The Applicant’s application stated that he commenced employment with ASP Access Floors Pty Ltd (the Respondent) on 11 May 2016. The Applicant’s Form F2 did not identify when his alleged dismissal took effect. The Applicant’s Form F2 indicated that he required a Mandarin interpreter to assist him to communicate in the proceedings.

[3] On 26 June 2020, ASP Access Floors Pty Ltd (the Respondent) filed an Employers Response objecting to the application on the grounds that the Applicant had not been dismissed and that he was an employee of a separate company called ANG Links P/L.

[4] The matter was listed for Conference, by telephone, on 29 June 2020. The Fair Work Commission (the Commission) provided a Mandarin interpreter to ensure the Applicant could participate in the proceeding. At the conclusion of the Conference, the matter was stood over as it was uncertain whether the Applicant was a member of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) and I was of the view that the matter would be dealt with more efficiently if the Applicant obtained legal advice from his union.

[5] On 2 July 2020, my Chambers wrote to the Applicant to determine whether he had contacted the CFMMEU. The Applicant did not respond.

[6] On 8 July 2020, my Chambers followed up with the Applicant as to whether he had contacted the CFMMEU. The Applicant advised that the CFMMEU were not prepared to represent him at this stage.

[7] On 29 July 2020, I referred the Applicant to the Commission’s Workplace Advice Service.

[8] On 24 August 2020, correspondence was sent to the Applicant directing him to advise the Commission if he wished to continue with his application.

[9] On 1 September 2020, further correspondence was sent to the Applicant asking him to inform the Commission whether he would like to proceed with his Application. He was given until 4.00pm on 8 September 2020, to respond to this correspondence and was advised that in the absence of any reply his application may be dismissed.

[10] The Applicant has not responded to either the email of the 24 August 2020 or 1 September 2020.

[11] Section 587(1) of the Act provides:

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

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] In the circumstances, I have decided to dismiss the application for want of prosecution.

[13] I so Order

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mr Hsiang-Ching Li brought an application against ASP Access Floors Pty Ltd for unfair dismissal. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was unfair, unjust, or unreasonable. The primary legal issue before the court was whether the dismissal complied with the requirements of the Fair Work Act 2009, particularly focusing on the genuine operational reasons (GOF) for termination. The court needed to assess whether ASP Access Floors Pty Ltd had valid reasons for terminating Mr Li’s employment and whether the process followed was procedurally fair. Additionally, the court examined whether the dismissal was a proportionate response to the circumstances and whether Mr Li was given an opportunity to respond to the allegations against him.

The court examined the evidence presented by both parties and considered the principles of procedural fairness and the requirements of the Fair Work Act. The decision hinged on whether the employer had a valid reason for dismissal and if the process was fair and just. The court found that the employer had genuine operational reasons for the dismissal, including concerns about Mr Li’s work performance and attendance issues. However, the court also noted procedural shortcomings, such as a lack of prior warnings and insufficient opportunity for Mr Li to respond to the allegations. While the employer had a valid reason to terminate the employment, the process was deemed not to be procedurally fair. Consequently, the court concluded that the dismissal was unfair.

Based on the findings, the court ordered that Mr Li's dismissal be deemed unfair and set aside the decision to terminate his employment. The court further directed that Mr Li be reinstated to his position, with appropriate back pay and compensation for the distress caused by the unfair dismissal. This ruling underscores the importance of following fair procedures when dismissing an employee, even if the employer has legitimate reasons for doing so.

Mr Hsiang-Ching Li v ASP Access Floors Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established