Simiao Chen v All Colour Media Printing (VIC)

[2023] FWC 134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Simiao Chen
v

All Colour Media Printing (VIC)

(U2018/8582)

COMMISSIONER BISSETT

MELBOURNE, 19 JANUARY 2023

Application for an unfair dismissal remedy

On 22 August 2018 Mr Simiao Chen (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the FW Act) alleging he was unfairly dismissed by All Colour Media Printing (VIC) (the Respondent).

On 19 October 2018 the Commission was made aware that the Respondent had entered external administration. On 7 November 2018 a Decision[1] was issued staying the matter until leave of a Court was granted.

On 6 January 2023 the Commission sent correspondence to Mr Chen’s nominated email address advising him that his matter is at risk of being dismissed as it is apparent he does not intend to seek the leave of the Court. Mr Chen was asked to reply by 12.00 pm 13 January 2023.

The Commission has not received any correspondence from Mr Chen.

Section 587 of the FW Act provides as follows:

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.

In the circumstances where leave of the Court is required to proceed, and that leave has not been sought by Mr Chen, I am satisfied that Mr Chen’s application has no reasonable prospects of success.

As such, I order that the application be dismissed pursuant to s.587(1)(c) of the FW Act.

COMMISSIONER

[1] [2018] FWC 6783

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application for an unfair dismissal remedy made by Mr Simiao Chen against All Colour Media Printing (VIC). Mr Chen alleged that he had been unfairly dismissed by his employer. The case came before the Fair Work Commission in 2018, and the Respondent later entered external administration, leading to a stay of the matter until leave of a court was granted. The Commission subsequently sought confirmation from Mr Chen that he intended to proceed with the application, but he did not respond to their correspondence, leading to concerns about the prospects of success for his application. The Commission concluded that, given the circumstances, Mr Chen's application had no reasonable prospects of success, and ordered the dismissal of the application under section 587(1)(c) of the Fair Work Act 2009. The Commissioner found that the application had no reasonable prospects of success due to the failure of Mr Chen to respond to the Commission's correspondence and seek leave of the Court, as required in the circumstances. The Commissioner was satisfied that, in the absence of such leave, the application could not proceed, and therefore ordered the dismissal of the application. This decision highlights the importance of ensuring that all procedural requirements are met in order for an application to proceed, and the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established