Mrs Sin Hoong Tang v Skellywags Pty. Ltd

[2024] FWC 3554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mrs Sin Hoong Tang
v

Skellywags Pty. Ltd

(C2024/8326)

DEPUTY PRESIDENT MASSON

MELBOURNE, 20 DECEMBER 2024

Application to deal with contraventions involving dismissal - jurisdictional objection - whether Applicant dismissed - jurisdictional objection rejected - found that Applicant was dismissed within the meaning of s 386(1) of the Fair Work Act.

On the 20 November 2024, Ms Sin Hoong Tang (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act) in which she asserts that the termination of her employment on 8 November 2024 by Skellywags Pty. Ltd. (the Respondent) contravened her workplace rights. In its Form F8A response, the Respondent raised a jurisdictional objection to the application, that the Applicant was not dismissed within the meaning of s 386 of the Act.

The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application.[1] Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s 368 of the Act.[2] Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s 386 of the Act.

For reasons given on transcript earlier today, I find that the Applicant was dismissed within the meaning of s 386(1)(a) of the Act. It is also clear that the Applicant alleges the dismissal contravened Part 3-1 of the Act. The requirements of s 365 have been met. The respondent’s jurisdictional objection is dismissed. The application will now proceed to a conciliation conference which will be listed shortly.

DEPUTY PRESIDENT

Appearances:

S Y Tang, Applicant.
S Kelly for the Respondent.

Hearing details:

2024.
Melbourne:

December 20

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCFAC 152; [2021] HCASL 37.

[2] Ibid at [51].

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Mrs Sin Hoong Tang filed an application against Skellywags Pty. Ltd., alleging that her termination of employment contravened her workplace rights. The Respondent contested the application on jurisdictional grounds, arguing that the Applicant was not dismissed within the meaning of the Fair Work Act 2009 (Cth). The central issue for the Commission to decide was whether the Applicant had indeed been dismissed, which was a prerequisite for the application to proceed.

The Deputy President of the Fair Work Commission examined the facts and evidence presented regarding the termination of the Applicant's employment. The Respondent's objection was based on the interpretation of the dismissal under s 386 of the Act. The Commission found that the Applicant was dismissed within the meaning of s 386(1)(a) of the Act, and therefore, the jurisdictional objection was rejected. The Applicant's application now proceeds to a conciliation conference to address the alleged contravention of Part 3-1 of the Act.

The Fair Work Commission determined that Mrs Sin Hoong Tang was dismissed by Skellywags Pty. Ltd. and that the application met the requirements of s 365 of the Fair Work Act. Consequently, the Respondent's jurisdictional objection was dismissed. The matter will now proceed to a conciliation conference to resolve the dispute regarding the alleged contravention of workplace rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established