Phillip Pham v The Online Media Agency Pty. Limited

[2017] FWC 4281

[2017] FWC 4281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Pham
v
The Online Media Agency Pty. Limited
(U2016/12186)

COMMISSIONER RIORDAN SYDNEY, 30 AUGUST 2017

Application for relief from unfair dismissal.

[1] Mr Phillip Pham was employed by the Online Media Agency Pty Limited between September 2012 and September 2016.

[2] Mr Pham lodged an unfair dismissal application with the Fair Work Commission (the Commission) on 5 October 2016. A liquidator was appointed to wind up the company an 20 December 2016. A Conference was held with Mr Pham and the liquidator for the Online Media Agency Pty Limited on 10 July 2017.

[3] I advised Mr Pham that he was to inform the Commission whether he wished for his application to be discontinued or would like for a decision to be issued dismissing his application.

[4] My Associate followed up Mr Pham with an email on 14 July 2017 requesting for his intentions to be provided to the Commission as instructed during the 10 July Conference.

[5] Mr Pham responded to my Associate’s email on 19 July 2017.

[6] An email was sent by my Associate on 21 July 2017 in response to Mr Pham’s email requesting for a Form F50 Notice of Discontinuance to be completed and filed with the Commission. Mr Pham was given seven days to file a Notice of Discontinuance to close his application. A Notice of Discontinuance has not been received from Mr Pham.

Relevant Legislation

[7] Section 399A of the Fair Work Act 2009 (Cth)(the Act) states:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[8] Section 587 of the Act states:

“587 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.”

Conclusion

[9] The Online Media Agency Pty Ltd has ceased to exist. Mr Pham’s application has no prospect of success.

[10] Mr Pham failed to provide his intentions to the Commission in a timely matter. Mr Pham also failed to adhere to directions given to file the appropriate paperwork within the specified timeframe given to him.

[11] After considering all circumstances in this matter, I have decided to dismiss Mr Pham’s unfair dismissal application in accordance with section 587 of the Act.

COMMISSIONER

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