Ms Somkamol Hasawang v Agents Support Services Pty Ltd (Previously Agents Support Systems Pty Ltd) T/A e-Travel Blackboard

[2013] FWC 4419

[2013] FWC 4419

FAIR WORK COMMISSION

DECISION

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

Ms Somkamol Hasawang
v
Agents Support Services Pty Ltd (Previously Agents Support Systems Pty Ltd) T/A e-Travel Blackboard
(U2013/7250)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 16 AUGUST 2013

Application for relief from unfair dismissal.

[1] Ms Hasawang lodged this application pursuant to section 394 of the Fair Work Act 2009 (the Act) on 6 March 2013.

[2] Agents Support Services Proprietary Limited (the respondent), after being prompted to do, so responded to the application. It objected to the application proceeding to arbitration on the basis that Ms Hasawang was not an employee.

[3] The respondent then lodged a Form 4 which set out the following Grounds of Objection to the application.

● Somkamol Hasawang is not an employee of Agents Support Services Pty Ltd

● Somkamol Hasawang is a Thai National and not resident in Australia

● The company does not have staff outside of Sydney

[1] In correspondence dated 23 May 2013 a Mrs Norma Santoro from the respondent also provided the following response:

“We refer to the recent request from the Fair Work Commission regarding an applicant Somkamol Hasawang, a Thai National, residing in the Kingdom of Thailand and who is not an employee of Agents Support Services Pty Ltd.

Agents Support Services Pty Ltd is a small company with five-fulltime (sic) employees all resident in Sydney.

In fact, Somkaniol Hasawang has targeted the company's customers in Thailand insinuating that the company is not financially stable and she could move them to a competing business, which currently operates in Thailand without proper documentation and permits. Furthermore, is the slander and defamation levied at the Director and Manager of the company by way of using social media outlets such as Facebook, Twitter and Linkedin.

The company is gravely concerned as to why they are in need of defending such accusations levied by Somkamol Hasawang when there is no contract or work place agreement in place; the applicant has been and continues to work for a competing entity in Thailand.

We trust this matter can now be put to rest as being a small business we lack both resources and expertise in dealing with such matters.

We thank you for your assistance and understanding in this matter.”

(my emphasis)

[2] Ms Hasawang provided an extensive and detailed submission with attachments on 24 May 2013. She also provided this to the respondent.

[3] On 29 May 2013 I wrote to the respondent requesting that it provide some evidentiary basis for its objection. I received no response. On 14 June 2013 I again wrote to the respondent advising that if it did not respond to my earlier correspondence and provide some evidence as to the matters it relies upon for its jurisdictional objection, that the objection may be dismissed.

[4] On 19 June 2013 the respondent did not provide any evidence as to its assertions as requested but replied as follows:

“The applicant is not our employee.

We only have a staff of four full-time employees and two casuals who are all resident in our Sydney office.

There is no agreement between our company and the applicant and we do not know what else we can do to resolve this matter. The jurisdictional objection is as we have no staff in Thailand and furthermore the applicant is not one of our staff.

Can we view evidence as to why this person believes they are our employee please?”

[5] The respondent did not address Ms Hasawang’s submissions or attachments. It asked for evidence without acknowledging the prior receipt of that evidence from Ms Hasawang.

[6] On 4 July 2013 I wrote to both parties and advised that I intended to deal with the application on the papers already provided, but that I would consider any further material they wished to put before me up until, but not after, close of business on Thursday, 11 July 2013. No material has been provided to date.

[7] The jurisdictional objection of the respondent is dismissed. This application is referred for allocation for a date for arbitration.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code A, PR538599>