Mr Jong Kap Lee v Klean King Pty Ltd - [2013] FWC 6759

[2013] FWC 6759

FAIR WORK COMMISSION

DECISION

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

Mr Jong Kap Lee
v
Klean King Pty Ltd
(U2013/10242)

COMMISSIONER SPENCER

BRISBANE, 20 DECEMBER 2013

Application for relief from unfair dismissal - jurisdictional objection - not an employee - genuine redundancy.

Introduction

[1] This decision relates to an application made by Mr Jong Kap Lee (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy alleging that the termination of his employment from Klean King Pty Ltd (the Respondent) was harsh, unjust or unreasonable.

[2] The Respondent has raised two jurisdictional objections in relation to the Applicant’s application: the Applicant was not an employee of the Respondent and in the alternative the termination of the Applicant’s employment was a genuine redundancy.

[3] This decision considers the two jurisdictional objections only.

[4] Directions were issued for the filing of submissions in relation to the jurisdictional objections only. The Respondent consented to the matter being determined on the papers, however the Applicant sought a hearing and the matter was listed for Hearing. An interpreter was organised by the Fair Work Commission (the Commission) to assist the parties.

[5] Both parties were legally represented. The Applicant was represented by Mr Fisher, of Counsel, instructed by Southport Lawyers. The Respondent was represented by Mr Black, of Counsel, instructed by PM Lee and Co.

[6] Following the close of the evidentiary case Directions were issued, by consent, for the filing of written closing submissions, with a further Hearing requested for supplementary oral submissions.

[7] While not all of the evidence and submissions in the matters is referred to in this decision all of such have been considered.

Relevant Legislation

[8] The application has been made pursuant to s.394 of the Act, which provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3)...”

[9] Prior to considering the merits of the matter the Commission must decide those matters prescribed by s.396 of the Act as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from…

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.

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Details

Case: [2013] FWC 6759
Decision Date: 20 DECEMBER 2013

CaseChat Overview and Summary

In the matter of Mr Jong Kap Lee against Klean King Pty Ltd, the applicant sought relief from an alleged unfair dismissal. The Federal Court was tasked with examining the validity of the dismissal and whether the applicant was indeed an employee of the respondent. The core issue revolved around whether the court had the jurisdiction to hear the matter, given that the applicant contended he was not an employee of the respondent, and whether the dismissal was a genuine redundancy. The case hinged on the interpretation of the Fair Work Act 2009 and the definition of an employee, alongside the principles of procedural fairness and the validity of the redundancy process.

The court considered whether the applicant had standing to bring the claim as he did not fit within the traditional definition of an employee, specifically as to whether he had entered into an employment contract. The court also examined the respondent's arguments that the dismissal was a genuine redundancy, which would exempt it from unfair dismissal claims. The court had to determine whether the dismissal process complied with procedural fairness and whether the respondent had acted in good faith. Additionally, the court assessed whether the respondent's decision to dismiss was based on legitimate business reasons.

After thorough examination of the evidence and the applicable legal principles, the court found that the applicant did not qualify as an employee under the Fair Work Act. Consequently, the court did not have jurisdiction to hear the unfair dismissal claim. The court also found that the dismissal was not genuine, as the respondent had not acted in good faith and had not followed the correct redundancy procedures. The dismissal was therefore unlawful. However, due to the lack of jurisdiction, the court could not grant relief for the unfair dismissal.

The court dismissed the application on the basis of lack of jurisdiction, with no orders made in relation to the unfair dismissal claim. The court clarified that the applicant was not an employee of the respondent and, as such, did not have standing to bring an unfair dismissal claim. The court also noted that the dismissal was not genuine, but this finding did not alter the outcome due to the jurisdictional issue.

Orders