Pingle Hong v Baiada - [2022] FWC 1008

[2022] FWC 1008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Pingle Hong
v

Baiada

(U2020/16199)

COMMISSIONER MATHESON

SYDNEY, 3 MAY 2022

Application for an unfair dismissal remedy – jurisdictional objection that Respondent was not the employer of the Applicant and did not dismiss the Applicant – jurisdictional objection upheld – application dismissed.

On 20 December 2020, Mr Pingle Hong (Applicant) applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the termination of his employment with Baiada (Respondent).

This matter appears to have been encumbered with complexity from the outset and has stalled in its progression at various stages before being allocated to me at the end of last year. Examples of the complexity surrounding the application have included that, on the face of the materials, the application appears to have been made out of time, there appears to have been confusion as to who the Applicant’s employer was at the time of his dismissal and the Applicant does not speak or understand English and is unfamiliar with the relevant legislation and processes of the Commission.

Background

On 4 August 2021, the Commission wrote to the Applicant noting that, based on the date of dismissal provided by the Applicant, being 3 October 2020, it appeared the application had been filed 57 days late. The email explained the circumstances in which an extension of time for the filing of an application can be granted and requested that the Applicant respond in writing by 9 August 2021 explaining why he considers his circumstances are exceptional and providing supporting evidence. At the same time, the Commission sought a response to the application from the Respondent.

On 9 August 2021 the Applicant responded to the Commission’s email of 4 August 2021. The response noted that the Applicant’s awareness of the law is weak and that he does not understand English and stated it “was through legal aid lawyers that I learned that you can help me to redress my grievances, so the time delay was so long”. No other evidence or accompanying documentation was provided.

On 9 August 2021, the Respondent also responded to the Commission’s email of 4 August 2021. The response stated that the Applicant was never an employee of the Respondent and that the Applicant was employed by an entity named “GGPB”, which provides boning services to the Respondent at its Tamworth Plant. Contact details for “GGPB” were supplied.

On 9 August 2021, the Commission wrote to the Applicant seeking to understand from the Applicant whether he agrees that he was not an employee of the Respondent and was an employee of “GGPB”. The Commission also sought confirmation from the Applicant as to whether he wished to amend his application to identify “GGPB” as the respondent. No response was received from the Applicant and follow up emails were sent. On 14 October 2021,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1008
Decision Date: 3 MAY 2022

CaseChat Overview and Summary

Mr Pingle Hong applied to the Fair Work Commission for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) in relation to the termination of his employment with Baiada. Baiada objected to the jurisdiction of the Commission to hear the matter on the basis that it was not Mr Hong's employer and did not dismiss him. The Commission was also faced with the issue of whether Mr Hong's application was made out of time. The Commission heard the matter on 28 January 2022. Both parties agreed that GGPB was Mr Hong's employer. The Commission was not satisfied that an employment contract existed between Mr Hong and Baiada, and that Baiada dismissed Mr Hong from his employment. The application was dismissed. The Commission suggested that Mr Hong may wish to consider making a fresh application in relation to GGPB.

The Commission considered the evidence and material as a whole and found the following may point to an employment relationship between Mr Hong and GGPB: Mr Hong spoke to Tony, the supervisor employed by GGPB, about securing a role working at the Respondent's Tamworth factory; when Mr Hong signed an employment contract, this occurred before Tony and Susan, who was Tony's wife; the payslips and PAYG payment summaries given to Mr Hong identify GGPB as the employer; the Applicant's evidence was that the cash payments made to him were paid by GGPB; the Applicant received pay slips weekly and the name of the employer on the payslips is identified as GGPB; when the Applicant was working he would listen to the directions of Tony, the supervisor employed by GGPB; a "GGPB Power Pty Ltd New Employee Details Form" which appears to have been signed on 19 February 2019 suggests that GGPB is the Applicant's employer; the Applicant made a workers' compensation claim for an injury incurred on 3 October 2020 and the letter to GGPB from icare (Insurance and Care NSW) dated 21 April 2021 identifies GGPB as the Applicant's employer; and GGPB's acknowledgement during the hearing that it employs the Applicant.

The Commission was not satisfied that the elements of a contract between Mr Hong and Baiada existed or that a contract existed between Mr Hong and Baiada. It followed that the Commission was not satisfied that Baiada was Mr Hong's employer or that Baiada dismissed Mr Hong from his employment. The application was dismissed.

Orders