Ms Yichao Dong v Ku Children's Services

[2024] FWC 1741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Yichao Dong
v

Ku Children's Services

(U2024/4615)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 2 JULY 2024

Application for an unfair dismissal remedy

Ms. Yichao Dong (applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) against her former employer KU Children’s Services (respondent) on 23 April 2024 (the application).

The matter was listed for directions on 13 June 2024. The applicant failed to appear at the directions hearing. Directions were made on that date for the filing of material in support of the application by the applicant by no later than Thursday 20 June 2024. No material was received.

There has been no contact by the Applicant and no attempt to explain the failure to comply with the Commission’s directions.

On 28 June 2024, the Respondent applied under s.399A of the Act for the application to be dismissed. On the same day, the applicant was directed to file material in response to the respondent’s application to dismiss the original application by 4pm on Monday 1 July 2024. No response was received from the applicant.

Pursuant to s.399A of the Act, I am satisfied that the Applicant has, on 20 June 2024, unreasonably failed to comply with a direction of the Commission relating to the application.

The application is dismissed under s.399A(1)(b) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Yichao Dong filed an application for an unfair dismissal remedy against her former employer, KU Children's Services, under section 394 of the Fair Work Act 2009. Ms Dong alleged that her dismissal was unfair and sought a remedy for this. The matter was scheduled for a directions hearing on 13 June 2024, but Ms Dong failed to attend. Subsequently, she did not provide any material in support of her application by the set deadline of 20 June 2024, despite being directed to do so. The respondent, KU Children's Services, subsequently applied for the dismissal of the application on 28 June 2024 under section 399A of the Act, citing the applicant's failure to comply with the Commission's directions.

The legal issues before the court were whether the applicant's failure to comply with the directions constituted a reasonable excuse and whether the application should be dismissed. Section 399A(1)(b) of the Fair Work Act 2009 provides that the Commission may dismiss an application if it is satisfied that the applicant has unreasonably failed to comply with a direction. The court needed to determine if the applicant's failure was reasonable or unreasonable. The respondent argued that the failure was unreasonable, while the applicant did not provide any material to counter this claim. The applicant also failed to respond to the directions issued on 28 June 2024 to address the respondent's application to dismiss.

The Deputy President found that Ms Dong unreasonably failed to comply with the Commission's directions. No explanation or material was provided to justify her non-compliance, and she did not attend the directions hearing or respond to the respondent's application to dismiss. Consequently, the Deputy President concluded that there was no reasonable excuse for Ms Dong's failure to comply with the directions. The application for an unfair dismissal remedy was dismissed under section 399A(1)(b) of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established