Mr Tsz Chung Justin Mok v JFC Australia Co Pty Ltd T/A JFC Australia
[2024] FWC 2415
•5 SEPTEMBER 2024
| [2024] FWC 2415 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.66M - Application to deal with a dispute about the right to request casual conversion
Mr Tsz Chung Justin Mok
v
JFC Australia Co Pty Ltd T/A JFC Australia
(C2024/4991)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 5 SEPTEMBER 2024 |
Application to dismiss second casual conversion application – discretionary considerations – application for costs – subject to final opportunity to sign conversion contract, application for dismissal provisionally granted – application for costs dismissed
On 24 July 2024, Justin Mok (Mr Mok or the applicant) applied to the Commission to deal with a casual conversion dispute. The application is made under s 66M of the Fair Work Act 2009 (Cth) (FW Act). It is the second such application made by Mr Mok (the second conversion application).
The respondent is JFC Australia Co Pty Ltd (JFC, the respondent or the employer).
By application dated 5 August 2024, the respondent seeks that the second conversion application be summarily dismissed with costs on the ground that it is a repetition of an already made application (the first conversion application) and is vexatious.
I convened a conference of the parties to the second conversation application on 8 August and issued consent directions[1] in advance of a resumed conference on 19 August.
At the resumed conference it was apparent that neither the second conversion application nor the underlying dispute had settled. The respondent sought that its strike-out application be dealt with. I heard submissions on the strike-out and costs application. I issued directions for the filing of further written materials.
This decision concerns those issues only (the respondent’s strike-out and costs application).
Proceedings were conducted with interpretation. Whilst Mr Mok and JFC officers speak English to a reasonable level, the Commission made a Cantonese interpreter available to Mr Mok, and a Japanese interpreter available to JFC.
JFC and Mr Mok were legally represented. JFC was represented at both conferences on the second conversion application. Mr Mok was represented at the first (8 August) conference, but his representative ceased to act on the morning of 19 August prior to the conference scheduled later that day.
Facts
The strike-out application is made by JFC in the wake of significant litigation background comprising a series of related applications.
For the sake of avoiding excessive detail or repetition, I do not summarise all interactions between the parties and the Commission, nor all interactions between the parties themselves. I highlight the events of particular relevance below. However, by consent, I have had regard to all correspondence on the Commission file, including that provided by the parties prior to and accompanying their submissions, and communication between the parties themselves.
JFC is an importer and distributer of food and beverage products from Japan.
On 5 September 2022 Mr Mok was employed as a casual storeman working in JFC’s warehouse.
In 2023 and again in March 2024 Mr Mok sought conversion to full time employment. On 20 March 2024 JFC rejected this request.
On 14 April 2024 Mr Mok reported a back injury and was unfit to work the casual roster.
On 15 April 2024, Mr Mok applied to the Commission to deal with a casual conversion dispute (the first conversion application). He sought that his employment be converted to full time or permanent part time upon resumption from the back injury.
On 19 April 2024, although he had not yet returned to work, Mr Mok applied to the Commission to seek an order to stop bullying (the stop bullying application). The application was made against JFC and the warehouse manager.
On 6 May 2024 the Commission as currently constituted conducted a conference on the first conversion application and, via directions issued that day[2], foreshadowed making a recommendation in favour of conversion to full time or part time employment.
On 16 May 2024, at a resumed conference on the first conversion application, the Commission made a recommendation for conversion “effective from the date Mr Mok returns to work.”[3] That recommendation was accepted by JFC. The Commission directed that an offer of full time employment be communicated to Mr Mok by 20 May and that he respond by 23 May.
JFC sent an offer letter to Mr Mok on 20 May 2024. It stated:
“As per our recent discussions and subject to your written agreement, you will be issued a new contract of employment including the following.
Commencement Date: To be determined
Hours: 38 hours per week
Classification: Wholesale Employee Level 2
Award: Storage Services and Wholesale Award
Ordinary Hourly Rate: $24.87 per hourHours of Work: Ordinary hours may be rostered between 7.00am and 5.30pm Monday to Friday
Superannuation: In accordance with superannuation legislation
All other terms and conditions of employment will be outlined in your contract of employment, which will be provided upon acceptance of this offer and confirmation of your commencement date.
To accept this offer of employment, please send a signed copy to the HR Department…no later than 12 noon Thursday 23 May 2024.”
Mr Mok countersigned his acceptance of this offer and returned it on 23 May.
The stop bullying application was allocated to me on 28 May 2024.
On 29 May 2024 Mr Mok proposed a start date of 3 June.
On 31 May 2024 JFC proposed an alternate start date of 10 June 2024 because it required a medical clearance.
On 3 June 2024 Mr Mok raised concerns with JFC about the return to work requirements including the medical clearance. JFC responded that day.
On 6 June 2024, at a conference on the stop bullying application, Mr Mok’s concern at reporting obligations upon re-employment and who was to be the manager or supervisor he reported to was discussed. Also discussed was JFC’s requirement for a medical clearance. The Commission provided Mr Mok four weeks (until 8 July) to elect whether to press his stop bullying application. By email to the Commission on 19 June 2024 Mr Mok elected not to do so. The Commission file on the stop bullying application was closed.
On 31 May, 3 June and 5 June 2024 the employer sought from Mr Mok medical certification prior to a return to work and explained its requirements.
A medical certificate provided by Mr Mok on 6 June 2024 was considered by JFC to be inadequate. On 13 June 2024 JFC outlined its requirement for a functional capacity assessment. Mr Mok agreed to do so. JFC agreed to pay for the assessment.
On 11 July 2024 JFC received a Functional Capacity Evaluation Report. Satisfied that it certified a safe return to work, on 17 July 2024 JFC sent Mr Mok a contract of employment as a full-time employee with a revised commencement date of 23 July.
JFC sought Mr Mok’s signature to the contract by 19 July (with the revised start date of 23 July) so rosters could be prepared, and work as a full time employee could commence.
Mr Mok did not sign the contract. Further email communication was exchanged between JFC and Mr Mok on 18, 19, 22, 23 and 26 July. These exchanges primarily concerned issues raised by Mr Mok relating to the contract and what he described as “unresolved concerns”. JFC agreed to extend the signing date to 27 July.
In an email on 23 July Mr Mok sought, amongst other issues, contact details of the JFC Managing Director to “enable me to escalate my concerns if necessary”. JFC further responded to the issues that day. Mr Mok replied seeking a delay in the 27 July “target completion date for signing” and “an update on these concerns so that I can address them and sign the contract”. JFC sent another email of response on 26 July.
On 27 July 2024, Mr Mok made the current application (second conversion application). Mr Mok sought that “my employer respect the direction set by the casual conversion claim so that I can resume work without further delays”. The grounds of the application stated that JFC “still have not addressed some of the issues and concerns I have”.
At the time of making the second conversion application (and the two earlier applications) Mr Mok was self-represented. However, on 7 August 2024 a legal practitioner advised the Commission that he was representing Mr Mok.
On 5 August 2024 the employer responded to the second conversion application by seeking its summary dismissal with costs.
On 8 August 2024 I conducted a conference on the second conversion application. Mr Mok, now represented by a legal practitioner, advised that:
whilst he wanted to resume full time employment, he had reservations about resuming work at JFC on the terms required by the employer;
that he was working in another job, at least temporarily, pending the outcome of his dispute over the full-time contract at JFC and to mitigate his loss, and that it was legitimate that he do so; and
that the delays in signing the contract were caused by the employer.
For its part, JFC expressed frustration that Mr Mok had not signed the contract, concern at impacts on the business caused by Mr Mok’s indecision, disputed that JFC was the cause of the delays, and questioned whether Mr Mok genuinely sought to return to full time employment given that he was now working in another job.
Following the conference, I summarised the following agreed next steps by email:[4]
“Dear Parties
On 8 August 2024 Deputy President Anderson conducted a conference of the parties on a second casual conversion dispute application (C2024/4991) filed by Mr Mok dated 27 July 2024. The employer responded on 5 August 2024 seeking certain orders and directions, including summary dismissal of the application.
The current application follows two earlier applications to the Commission by Mr Mok, a casual conversion application (C2024/2305) and a stop bullying application (AB 2024/280).
The agreed basis on which the second casual conversion dispute application concluded is as follows:
1. Each party will take into account the Deputy President’s indication that, if Mr Mok seeks to resume employment with JFC Australia, the Commission’s recommendation of 16 May 2024, which had been mutually agreed, should be given effect to without further delay and that it is not in their respective or mutual interest for an effective return to work as a full-time employee to remain unresolved;
2. That by close of business Tuesday 13 August 2024 Mr Mok take advice from his legal representative and provide further instructions on the matter generally including:
·Whether Mr Mok continues to seek a return to full-time employment with JFC Australia;
·Whether any reasonable impediment exists to Mr Mok recommencing work on a date identified by the employer and on the terms of the proposed full-time contract, and mechanisms to quickly resolve any such issues; and
·Whether any alternative option is proposed, on an open or without prejudice basis, to resolving the employment dispute.
3. That by close of business Thursday 15 August 2024 Mr Mok, via his representative, communicate his intention and instructions to JFC Australia’s representative;
4. That JFC Australia consider its position further on Friday 16 August 2024 and provide a response to Mr Mok’s representative; and
5. That the parties, via their representatives, make best endeavours to promptly reach an agreement on the matters in issue.
6. The second casual conversion dispute application is re-listed for report back and further conference before Deputy President Anderson on Monday 19 August 2024 at 3.30pm (see attached Notice of Listing). The rights of both parties are reserved. This includes the right of the employer to seek listing of its application to summarily dismiss the second casual conversion dispute application or make further orders or directions with respect to it.”
Mr Mok did not, via his representative, communicate his intention and instructions about returning to work or concerning the contract by close of business 15 August as required.
By email sent by JFC to Mr Mok’s solicitors (copied to Mr Mok) at 8.25pm on 15 August 2024 JFC advised Mr Mok that he had not responded as required by the Commission and that consequently it (JFC) withdrew the full time employment offer and contract:[5]
“Dear Michael and Justin,
Further to point 2 and 3 in the email from the Chambers of Deputy President Anderson (dated 8 August 2024) and as discussed at the Conference last week, we have not received any correspondence from Justin regarding the employment agreement and his return to work date. As such, Justin has failed to follow the terms agreed between parties at the Conference last week.
Since we have not heard from Justin or you, we consider it reasonable to assume, and in line with the relevant provisions of the Fair Work Act 2009, specifically Div 4A, that Justin is declining the casual conversion and/ or refusing to return to work by abandoning his position. It is also reasonable under the circumstances to withdraw the employment offer.
As such, we consider the full time employment offer to have been declined by Justin as we have waited for a reasonable amount of time since 17 July 2024, being 29 days since offering the full-time employment contract.
To clarify and avoid any confusion, at this stage;
·the full-time employment contract can no longer be accepted unless offered again by Our Client; and
·Our Client formally withdraws the full-time employment offer and contract.
Our Client will pursue to have the matter summarily dismissed with costs at the next conference date unless Justin withdraws the casual conversion claim by 3pm tomorrow.
Michael – Please let us know if you are no longer acting for Justin in this matter.
Thank you.
Kind regards,
Utkarsh Chanana (Krash)
Solicitor
OpenLegal”
(emphasis in original).
Having been copied into the email, Mr Mok responded to JFC’s solicitors by email at 11:30pm on 15 August 2024 stating that:
“I wasn't aware that my legal representative hadn't communicated with you. I want to clarify that I have never refused to sign the full-time contract, as it seems you may be implying.
In your latest response, you mentioned that your client intends to pursue a summary dismissal of the matter with costs at the next conference, which has left me somewhat confused. To avoid any further misunderstandings or complications and to protect my legal rights, I would like to sign the contract during the upcoming conference.”
On 16 August 2024 Mr Mok sought JFC’s response.
On the morning of 19 August 2024, Mr Mok’s representative filed a notice of ceasing to act on account of a conflict of interest. In a related email that morning to the Commission, the representative advised that “I do not believe that the solicitor / client conflict of interest should prejudice Mr Mok, particularly as the respondent has indicated that it may seek an adverse costs order against him.”
That same day (19 August) Mr Mok advised my chambers that he “had decided to cease my legal representative from acting on my behalf”.[6]
I convened the resumed conference on the second conversion application on the afternoon of 19 August 2024, as had been listed following the 8 August conference.
At the conference JFC advised that it had withdrawn the full-time contract because Mr Mok had been provided multiple opportunities to sign it since it was first sent on 17 July, had not done so and had not provided clarity on his position by close of business on 15 August as had been directed by the Commission.
Mr Mok indicated that he was ready to sign the contract but that it required a different start date. JFC indicated that this was no longer available to Mr Mok as the opportunity for signing had passed when the contract had been withdrawn four days earlier.
JFC then proceeded to seek determination of its strike out and costs application. Both JFC and Mr Mok put oral submissions on that matter.
I issued further directions on 19 August:
“[1] NOTING THAT at a conference before Deputy President Anderson on 18 August 2024:
· Mr Mok indicated an intention to sign the July 2024 contract of employment prepared by the employer provided it included a revised commencement date;
· The respondent indicated that it was withdrawing its offer in light of the respondent not having been advised of Mr Mok’s position by 13[7] August 2024;
· The respondent sought that the second casual conversion application by Mr Mok (C2024/4991) be dismissed summarily with costs on the grounds set out in its 5 August 2024 application; and
· The parties agreed that, in determining the employer’s strike-out application and costs application, the Commission could have regard to all prior proceedings including the conferences of 8 August and 6 and 16 May 2024
[2] AND NOTING FURTHER the oral submissions made on 19 August 2024 on the respondent’s strike-out and costs application, the Commission DIRECTS:
· any further submissions by Mr Mok be made in writing by 4.00pm Friday 23 August 2024; and
· any reply submissions by the respondent be made by 4.00pm Monday 26 August 2024.
[3] A decision on the respondent’s strike-out and costs application is reserved and will be made and advised after 26 August 2024.”
Mr Mok and JFC both filed written submissions.
Submissions
JFC
JFC submit that the second conversion application should be summarily dismissed because it re-litigates the first application which had already been dealt with to finality.
JFC submit that a costs order should be made against Mr Mok because the second conversion application is frivolous and vexatious, has no reasonable prospect of success and because Mr Mok has unreasonably failed to sign the full-time contract which gave effect to the outcome of the first conversion application. In failing to do so, Mr Mok has put JFC to the cost and expense of dealing with a repeat application that was avoidable if he had genuinely wanted to return to work as a full-time employee.
Mr Mok
Mr Mok submits that he made the second conversion application for a proper purpose, being that he had legitimate questions about his proposed resumption as a full-time employee on the terms set out in the contract. Those questions were not adequately answered by JFC.
Mr Mok submits that he was unaware that his legal representative had not communicated his concerns to JFC by 15 August 2024 as had been directed.
Consideration
JFC’s strike-out application
The power to summarily dismiss an application is to be used sparingly and only where the case for doing so is clearly established.[8]
I now deal with two interrelated issues. Whether the second conversion application has no reasonable prospects of success, and whether there is further utility in dealing with it and whether it is reasonable to do so.
A conclusion that an application has no reasonable prospects of success should only be reached with caution and in circumstances where the application is “manifestly untenable or groundless or so lacking in merit or substance to be not reasonably arguable”.[9]
In this matter, and applying that caution I have, for the following reasons, reached that level of satisfaction. The application has no reasonable prospects of success because it seeks to relitigate, three months later, the same subject matter (conversion to permanency) which was the subject of Mr Mok’s first conversion application. There was only one singular casual employment relationship Mr Mok had with JFC, and that singular relationship was the subject of the first conversion application, and is the same relationship that seeks to be converted by the second. The first conversion application was resolved by way of a formal recommendation by the Commission in favour or Mr Mok, to which both Mr Mok and JFC had agreed.
Consistent with that recommendation, an offer of full time employment was made by JFC on 20 May 2024 and accepted by Mr Mok on 23 May 2024. What was then required was a medical clearance, a signed contract as a full time employee and an agreed start date.
In that sense, Mr Mok had in his possession the conversion outcome he sought and again seeks – an assessment by the Commission that his conversion claim had merit and, by agreed recommendation, that his employment be converted from casual to full time effective from a date on which he is fit to return to work.
What has arisen since then is a dispute over implementation of an agreed recommendation, not whether conversion should or should not occur. That dispute is being prosecuted by Mr Mok via a fresh conversion application. This is despite the first application having achieved the outcome sought by Mr Mok (conversion to permanency) and agreed to by JFC. In a legal sense, the second application can do no more than, by conciliation, deal with the implementation dispute and only to the extent the Commission is empowered to do so.
I agree with Mr Mok that implementation arrangements or contractual conditions upon a conversion to permanency are incidental to the outcome of the first conversion application. Such matters are capable of being the subject of conciliation in proceedings under s 66M. However, the Commission’s powers are restricted (at least under legislation governing this application) to conciliating the dispute and making recommendations or expressing opinions relating to the conversion issue and matters incidental to it.
This is because s 66M only provides for arbitration by agreement of both parties unless a relevant dispute resolution provision binding the parties (by contract or industrial instrument) provides otherwise. In this matter, no such contractual provision exists. The relevant award covering Mr Mok’s employment (the Storage Services and Wholesale Award) provides only for consent arbitration (clause 32.5) and invokes conversion rights only by reference to s 66M (clause 11.4).
Consequently, absent agreement to arbitrate, arbitration is not available. Therefore, I conclude that, other than with respect to conciliation over matters of implementation, the second conversion application has no reasonable prospects of success.
With respect to utility, three reasons weigh in favour of a finding that there is no utility in further dealing with the second conversion application.
Firstly, as noted, the outcome of the second conversion application (a recommendation or opinion in favour of conversion to full time employment) cannot be more favourable to Mr Mok than what he achieved via the first application.
Secondly, conciliation powers on the second conversion application have been exercised. To the extent that implementation issues have precluded a return to work consistent with the 16 May 2024 recommendation, I have twice conciliated the second conversion application. In this respect I make two observations:
whilst the issues of concern raised by Mr Mok between 23 May and 27 July were in part (though not wholly) relevant to implementation of the Commission’s recommendation, they were generally responded to in a timely and reasonable manner by JFC. I am satisfied that Mr Mok was provided adequate information and sufficient time to seek advice on the full time contract, to consider JFC’s responses, and to sign it by known and extended deadlines; and
the delays in implementation were materially (though not wholly) caused by Mr Mok’s hesitation and failure to sign the contract despite his frequently stated desire to do so. This caused operational uncertainty to JFC in holding open since 20 May a full time role in the warehouse pending Mr Mok’s decision. The delays reasonably eroded JFC’s trust in Mr Mok’s stated intention.
Thirdly, the dispute is now intractable despite conciliation powers having been exercised. Absent further Commission intervention, there is no prospect of an agreed return to work on the terms of the recommendation. JFC have withdrawn the contract due to Mr Mok’s failure to respond as directed by close of business 15 August 2024.
Dismissing an application in circumstances where there has been no merit hearing is discretionary. Subject to one consideration (below), my provisional view is that it is appropriate to exercise that discretion in favour of dismissing the second conversion application.
In arriving at the provisional decision to dismiss the application, I do not do so because Mr Mok has or has not undertaken alternative employment in the delay period. Whilst alternate employment is somewhat inconsistent with a desire to return to full time employment, I have inadequate information about the nature of that alternate work or its permanency to draw any such conclusion.
Further, whilst I have provisionally determined to dismiss the second conversion application for the aforementioned reasons, I pass no comment on whether the offer by JFC on 20 May 2024 and acceptance by Mr Mok on 23 May 2024 is itself legally enforceable by either Mr Mok or JFC, or whether the withdrawal of the offer and contract by JFC on 15 August 2024 is or was consistent with its legal rights and obligations.
In this respect I note, but need not express, a view on the employer’s submission that JFC provided Mr Mok the statutorily required period to accept conversion and that he failed to do so within time, such that JFC was within its legal rights under s 66D to withdraw the offer. Whether s 66D is relevant, and whether JFC was within its rights to do so on this or any other ground is a legal question and a matter for the courts if the lawfulness of that conduct, which arose weeks after the second conversation application was made, was to be litigated.
The consideration which makes this a provisional view only is that I am not satisfied that it was reasonable for JFC to unilaterally withdraw the contract of 17 July at 8.25pm on 15 August 2024. JFC did so on the ground that Mr Mok had not replied by close of business that day. The effect of doing so was that Mr Mok no longer had a viable pathway to give effect to the agreed recommendation of 16 May 2024.
In its communication that evening, JFC put it this way:
“Since we have not heard from Justin or you, we consider it reasonable to assume, and in line with the relevant provisions of the Fair Work Act 2009, specifically Div 4A, that Justin is declining the casual conversion and/or refusing to return to work by abandoning his position. It is also reasonable under the circumstances to withdraw the employment offer.”
I agree that Mr Mok was in breach of the Commission’s direction; the phrase “close of business” is reasonably interpreted as 5.00pm on a given day, and no response had been received by JFC by that time. However, this unilateral decision by JFC was not, objectively considered, reasonable.
Firstly, under the terms of my directions of 8 August 2024 Mr Mok was required to respond “via his representative”. It was the legal representative who did not respond to JFC by the required time, not Mr Mok personally.
Secondly, Mr Mok had a reasonable basis for believing that his legal representative would reply by close of business and, upon hearing that his representative had not done so, he acted swiftly at 11.30pm that evening to do so.
Thirdly, Mr Mok’s response late that evening was that he would sign the contract but wished to do so at the conference before the Commission scheduled for 19 August. Whilst this was an unusual step and involved a delay of a further four days, in the circumstances where Mr Mok considered that his legal representative had let him down (and subsequently ceased to act), it was not wholly unreasonable that Mr Mok wished to sign the contract in the environment of a Commission proceeding.
Accordingly, I have decided to provide one final opportunity for Mr Mok to sign the contract of 17 July 2024 if he intends to resume work as a full time employee in accordance with my recommendation of 16 May 2024. That opportunity will be without any further negotiation of the terms of the contract as provided by JFC. If Mr Mok signs the contract, the start date will be the date as reasonably set by JFC. In the absence of Mr Mok signing the contract by the time directed or indicating that he declines to do so, my provisional view that the second conversion application be dismissed will take immediate effect and the application will be forthwith dismissed.
The costs application
JFC seek an order for costs under s 611 of the FW Act.
The starting point in considering a costs application is s 611(1) (described in the explanatory memorandum to the FW Act as a “general rule”) which states that a person must bear their own costs in relation to a matter before the Commission. Multiple decisions of the Commission have given primacy and weight to this general rule in the statutory scheme.[10]
Whilst Mr Mok’s second conversion application, for the aforementioned reasons, has no reasonable prospects of success, I do not consider it appropriate to make an order for costs against Mr Mok for the following reasons.
Firstly, Mr Mok was, at the time of making the second conversion application, self-represented. He appears to have initiated this further litigation, and his earlier applications, without the benefit of independent legal advice. It appears that he also regarded the second application as an extension of the first. Whilst this is not correct in a technical sense, it is understandable that a self-represented party may see it that way given that the first application’s outcome was premised on the need for an employment arrangement to be established on a full time basis.
Secondly, Mr Mok was entitled to seek advice on the full time contract provided to him by JFC on 17 July 2024. Whilst I agree with JFC that Mr Mok had enough time to obtain advice and commit himself one way or another to a return to work, he did seek and obtain advice during the course of the second application being before the Commission.
Thirdly, whilst the employer has been put to cost and expense through the convening of further conferences and the preparing of materials relating thereto, the second conversion application has concerned implementation of an agreed outcome on the first application.
Fourthly, the failure by Mr Mok to respond as directed by close of business 15 August 2024 was a failure in the first instance by Mr Mok’s representative and not Mr Mok personally.
Whilst I recognise that delays caused in part by Mr Mok’s indecisiveness have disrupted JFC’s operational planning pending the second conversion application being dealt with, irrespective of whether the second application was made, JFC was required to engage with Mr Mok on his return-to-work intentions and on his willingness to sign the contract provided to him on 17 July. That JFC has had to do so under cover of a second application has added some complexity and cost to that task, but not such that a costs order should be made.
Conclusion
I issue the following directions and orders:
That JFC Australia Co Pty Ltd (via its representative or otherwise) is DIRECTED by 10.00am (ACST) Friday 6 September 2024 to re-offer the contract of 17 July 2024 to Mr Tsz Chung Mok, with a start date reasonably determined by JFC Australia Co Pty Ltd;
That Mr Tsz Chung Justin Mok is DIRECTED by 4.00pm (ACST) Friday 6 September 2024 to decide whether to accept the offer and, if so, sign the contract and return a signed copy to JFC Australia Co Pty Ltd without any further correspondence on the terms of the contract, or otherwise advise JFC that he does not intend to do so.
If Mr Tsz Chung Justin Mok does not return a signed contract to JFC Australia Co Pty Ltd or advise that he does not intend to do so by 4.00pm (ACST) Friday 6 September 2024 as directed, the following Order will come into immediate operation:
That the Commission ORDERS that Mr Tsz Chung Justin Mok’s application to deal with a dispute about the right to request casual conversion (C2024/4991) be dismissed.
It is FURTHER ORDERED that the application by JFC Australia Co Pty Ltd T/A JFC Australia for a costs order against Mr Tsz Chung Mok be dismissed.
Directions and Orders giving effect to this decision accompany its publication.[11]
DEPUTY PRESIDENT
Appearances:
J. Mok, on his own behalf (formerly represented by M. Irving of Websters Lawyers)
U. Chanana of Open Legal, on behalf of JFC Australia Co Pty Ltd T/A JFC Australia
Conference details:
2024.
Adelaide (by video with interpretation);
8 and 19 August.
Final written submissions:
Mr Tsz Chung Justin Mok: 23 August 2024
JFC Australia Co Pty Ltd: 26 August 2024
[1] Email ‘Chambers Anderson DP’ 8 August 2024 12.45pm
[2] Directions Anderson DP 6 May 2024
[3] Recommendation Anderson DP 16 May 2024
[4] Email ‘Chambers Anderson DP’ 8 August 2024 12.15pm
[5] Email Open Legal to Websters Lawyers 15 August 2024 20.35
[6] Email to ‘Chambers Anderson DP’ 19 August 2024 9.05am
[7] The date 13 August in this direction is incorrect; the directions of 8 August required Mr Mok to advise JFC by 15 August
[8] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69, 8
[9] Baker v Salva Resources Pty Ltd[2011] FWAFB 4014; see also Go To Court Franchising Pty Ltd T/A Go To Court Lawyers v Lewis[2018] FWCFB 63
[10] For example, Hansen v Calvary Health Care Adelaide Limited[2016] FWCFB 8162, [15] – [16]
[11] PR778994
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