Somkamol Hasawang v Agents Support Services Pty Ltd t/a e-Travel Blackboard
[2014] FWCFB 5059
•29 JULY 2014
| [2014] FWCFB 5059 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Agents Support Services Pty Ltd t/a e-Travel Blackboard
(C2014/779)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2014] FWC 1919 of Commissioner McKenna at Sydney on 23 April 2014 in matter number U2013/7250.
[1] In this decision we reproduce in edited form the reasons for decision which we stated on transcript at the conclusion of the hearing of this appeal on 25 July 2014.
[2] This is an appeal, for which permission is required, against a decision issued by Commissioner McKenna on 23 April 2014 (Decision) 1. In that Decision, the Commissioner dismissed an application lodged by Ms Somkamol Hasawang for an unfair dismissal remedy under s.394 of the Fair Work Act2009 (the Act).
[3] The factual background to the matter is complex, but it is sufficient for present purposes to identify the following uncontentious facts:
(1) Ms Hasawang was employed by an Australian company, Agents Support Systems Pty Ltd, in 2008 pursuant to a written contract.
(2) The employment was in Thailand.
(3) In October 2012, Agents Support Systems Pty Ltd became insolvent, and its main business assets were purchased by another company, Agents Support Services Pty Ltd (the respondent).
(4) Agents Support Systems Pty Ltd owed wages to Ms Hasawang at the time it became insolvent.
(5) On 14 February 2014, Mr Hai Ngo, Acting General Manager of Agents Support Services Pty Ltd sent Ms Hasawang an email in which he said:
“Unfortunately with the new ownership and management structure of Agents Support we have no alternative but to terminate your involvement with our business with immediate effect. As previously discussed with you on numerous occasions both by Anthony and Norma, any related historical financial disputes should be taken up with Peter Reilly. We thank you for your contribution and wish you well in your future endeavours.”
[4] There was no hearing, and no evidence taken on oath or affirmation, before the Commissioner. This was a result of Ms Hasawang being unable to come from Thailand to Australia to conduct her case. The Commissioner was consequently required to determine the matter on the basis of written submissions and a large range of documents sent to her by the parties. Neither party was legally represented, so that there was a lack of necessary assistance given to her by the parties’ submissions. In particular, there was a lack of joinder on many of the issues; for example, the respondent alleged a certain instance of misconduct on the part of Ms Hasawang, but no response to this allegation by Ms Hasawang is identifiable in the material before the Commissioner.
[5] The Commissioner was therefore necessarily placed in a difficult position in terms of the fact finding exercise required to determine the matter.
[6] In her Decision, the Commissioner determined to dismiss the application on two bases. The first was that Ms Hasawang had not served the minimum employment period required under s.383 of the Act, because her service with the respondent had been for less than six months, and there had been no transmission of business from the insolvent company, Agents Support Systems Pty Ltd, to the respondent. We note in this connection that the Commissioner appeared to have accepted, in the face of the respondent’s denial, that Ms Hasawang had in fact been employed by the respondent after the sale of the business assets, and had in fact been dismissed. This was undoubtedly a correct conclusion. The contemporaneous documents made it quite clear that Ms Hasawang performed work for the respondent, was paid by it and was dismissed from that employment on 14 February 2013. It is less clear that there was no transmission of business, although the facts about this are obscure.
[7] The second basis for dismissal of the application was that, consistent with the Small Business Fair Dismissal Code, the respondent summarily dismissed Ms Hasawang based upon a belief on reasonable grounds that the instance of misconduct to which we have earlier referred was sufficiently serious to justify immediate dismissal. Again, because of the way the case went forward below, the facts relevant to this issue, including whether the misconduct occurred, and whether it constituted the reason for the dismissal, are quite unclear. The fact that no hearing was conducted meant that there was little or no opportunity for such matters to be clarified or for the veracity of the assertions made in the submissions to be tested.
[8] Under s.400(1) of the Act we are not permitted to grant permission to appeal unless we are satisfied that it is in the public interest to do so. We are not satisfied that the public interest is attracted in this case. Ms Hasawang has sought to contend that a different result should have pertained in this case, and has raised various new factual matters that were not raised before the Commissioner. She has not identified any error of fact or law which would justify appellate intervention. Because of her inability to prosecute her case below in Australia, the position is that it is not possible with any certainty to establish the facts with respect to a whole range of critical issues, including whether her employment was within the geographical scope of operation of the Act, whether there was a transmission of business, and the circumstances of the alleged misconduct and the dismissal. As the applicant, Ms Hasawang bore the risk of any failure to prove the facts necessary to make out her case. She cannot rectify any failure to do so by attempts to introduce new factual matters in her appeal.
[9] We note that it is apparent that Ms Hasawang has concerns about the non-payment of entitlements under her contract of employment with the insolvent company, Agents Support Systems Pty Ltd. However, this is not an issue that can properly arise for resolution in an unfair dismissal case, as was pointed out in the Commissioner’s Decision at paragraphs [34] and [35].
[10] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
S. Hasawang on her own behalf
J. Harris and N. Santoro for the respondent
Hearing details:
2014.
Sydney:
25 July.
1 [2014] FWC 1919
Printed by authority of the Commonwealth Government Printer
<Price code A, PR553597>
1
0