Mr Tian Kui Ng v Humble Four Pty Ltd

[2023] FWC 539

[2023] FWC 539

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Tian Kui Ng
v

Humble Four Pty Ltd

(C2022/7983)

DEPUTY PRESIDENT CROSS SYDNEY, 6 MARCH 2023

Application to deal with contraventions involving dismissal

1. Mr Tian Kui Ng (the Applicant) was employed by Humble Four Pty Ltd (the Respondent). The Applicant initially filed an application to deal with contraventions involving dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) on 16 August 2022 with an amended application filed on 2 December 2022 (the Application).

1. On 20 December 2022, the Respondent filed a response (the Response) to the Application alleging that the application was brought out of time and that the Applicant worked for the Respondent for less than 6 months and was still on probation at the time of the dismissal. The Response was also copied to the Applicant at the time of filing.

Relevant Facts and Directions

1. On 10 February 2023, my Chambers issued a Notice of Listing for a Jurisdictional Hearing, for 12 April 2023 along with Directions for filing of material as follows:

1. Mr Tian Kui Ng (the Applicant) is directed to file with the Fair Work Commission, and serve on Humble Four Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in relation to the Jurisdictional Objection raised by the Respondent in this matter by 4pm on 24 February 2023.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 10 March 2023.

3. The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 17 March 2023.
4. Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 10 March 2023.

1. On 27 February 2023, having not received the Applicant’s submissions per Direction 1 above, my Chambers sent the following correspondence to the parties:

Dear Parties,

I note the Applicant has not complied with Direction 1 of the Commission’s Directions issued on 10 February 2023 (Listing Directions). Please see below Direction:

1. Mr Tian Kui Ng (the Applicant) is directed to file with the Fair Work Commission, and serve on Humble Four Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in relation to the Jurisdictional Objection raised by the Respondent in this matter by 4pm on 24 February 2023.

The Applicant is required to email Chambers by 4:00pm on Tuesday, 28 February 2023 with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.

I draw the parties’ attention to Note c) of the Listing Directions, reproduced below:

Any request for an extension of time for the filing of materials, or for an adjournment of the arbitration hearing, must be made as soon as practicable and must be based on substantial grounds. Noncompliance with directions will not otherwise be tolerated.

Please note that any materials must be filed with the Commission via email to this address, being [email protected].

1. On 1 March 2023, having not received a response from the Applicant to the above email, my Chambers sent the following correspondence to the parties:

Dear Parties,

Chambers refers to the above matter and notes that a response has not been received to the email below.

The Applicant is directed to provide his response by no later than 4:00pm on Friday, 3 March 2023. If no response is received by this time, the matter will be dismissed for want of prosecution.

1. On 6 March 2023, my Chambers attempted to contact the Applicant by means of the mobile number listed on his Application. Whilst the phone rang out, there was no response and my Chambers did not have an opportunity to leave a voicemail.

Relevant Legislation

1. Section 587 of the Act provides:

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

(c)the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2)   Despite paragraphs (1)(b) and (c), the 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)   The FWC may dismiss an application:

(a)on its own initiative; or

(b)on application.

Consideration

1. The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. 
   In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR760042>