Shu Ya Yang v Precepts

[2023] FWC 346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shu Ya Yang
v

Precepts

(U2023/398)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 FEBRUARY 2023

Application for an unfair dismissal remedy.

Shu Ya Yang (the applicant) was employed by Precepts (the respondent) from the 4^th of November 2020 until she was dismissed on the 13^th of December 2022.

On the 13^th of January 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The application was lodged 10 days out of time.
On the 25^th of January 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and she was required to respond by the 30^th of January 2023.
On the 31^st of January 2023, further correspondence was sent to the applicant directing her to provide a response by 5:00pm on the 20^th of January 2023. She was advised that in the absence of a reply, her application may be dismissed.

To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

Section 587 of the Act provides:

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Shu Ya Yang sought relief from the Fair Work Commission for an unfair dismissal remedy against her former employer, Precepts. Ms Yang was employed by Precepts from November 2020 until her dismissal on 13 December 2022. She lodged her application for unfair dismissal under section 394 of the Fair Work Act 2009 on 13 January 2023, which was 10 days beyond the mandated time frame. The Commission subsequently notified the applicant of the late filing and requested a response by 30 January 2023, which was not provided. The Commission then directed Ms Yang to respond by 5:00pm on 20 January 2023, which was also not provided. Despite these notifications, Ms Yang did not respond to any of the correspondence sent by the Commission. The Fair Work Commission had to determine whether to dismiss the application for being lodged out of time and for want of prosecution under section 587 of the Act. The Commission found that the jurisdictional authority to dismiss an application was not restricted to the circumstances outlined in section 587(1)(a), (b) and (c) of the Act. The Commission ultimately decided to dismiss the application for want of prosecution pursuant to section 587(3)(a) of the Act.

The primary legal issue before the Commission was whether the applicant's late filing and failure to respond to correspondence from the Commission warranted dismissal of her unfair dismissal application. Under section 587(1) of the Act, the Commission has the jurisdiction to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Additionally, the Commission must not dismiss an application under section 365 or 773 of the Act on the grounds that it is frivolous or vexatious or has no reasonable prospects of success. The Commission may dismiss an application either on its own initiative or on application. The Commission concluded that the jurisdictional authority to dismiss an application was not limited to the circumstances outlined in section 587(1)(a), (b) and (c) of the Act. The Commission determined that the applicant's late filing and failure to respond to correspondence warranted dismissal of her unfair dismissal application for want of prosecution.

The Commission found that the applicant's unfair dismissal application was not made in accordance with the Act, as it was lodged 10 days out of time. Additionally, the applicant failed to respond to multiple notifications from the Commission regarding the late filing and was ultimately unresponsive to any correspondence sent by the Commission. The Commission held that the applicant's failure to respond to the Commission's notifications and correspondence demonstrated a lack of prosecution of her application, which warranted dismissal of her unfair dismissal application. The Commission found that the applicant's late filing and failure to respond to correspondence from the Commission warranted dismissal of her unfair dismissal application for want of prosecution. The Commission exercised its discretion to dismiss the application under section 587(3)(a) of the Act, on its own initiative.

The Fair Work Commission dismissed Shu Ya Yang's unfair dismissal application for want of prosecution. The Commission found that the application was not made in accordance with the Act, as it was lodged 10 days out of time. Additionally, the applicant failed to respond to multiple notifications from the Commission regarding the late filing and was ultimately unresponsive to any correspondence sent by the Commission. The Commission held that the applicant's failure to respond to the Commission's notifications and correspondence demonstrated a lack of prosecution of her application, which warranted dismissal of her unfair dismissal application. An order to that effect will issue with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established