DECISION

Fair Work Act 2009
s.365—General protections

Suk Yan Chan
(C2021/3662)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 13 AUGUST 2021

Application to deal with contraventions involving dismissal–application dismissed

[1] Ms Suk Yan Chan (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by an employer wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not made in accordance with the procedural rules. The applicant has not responded to correspondence from the Commission alerting her to the deficiencies in her application, nor has she rectified those deficiencies. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 25 June 2021. On 30 June 2021, the Commission sent to the applicant a letter stating that the application was incomplete because the respondent was not named and no details for them had been provided. The letter advised that unless an amended application containing the respondent details was lodged by 14 July 2021, the application may be dismissed. On 28 July 2021, the applicant emailed various screenshots of Facebook profiles and images to the Commission. The Commission wrote to the applicant that day, noting that the application form remained incomplete and her submissions did not constitute completion of her application. The applicant was advised that unless a completed application form was lodged by 4 August 2021, the matter may be dismissed.

[3] To date, the applicant has not amended her application or provided the missing details. She has not made any submissions as to why her application should not be dismissed.

[4] Section 587 of the 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

…

(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.”

[5] Section 585 of the Act states that an application to the Commission ‘must be in accordance with the procedural rules (if any) relating to applications of that kind’. The application in the present matter did not provide a date of dismissal and did not name a respondent, as it is required to do under the Fair Work Commission Rules (see Rule 8 and Schedule 1). The document filed by the applicant is not in substantial compliance with the relevant form, because it does not identify the respondent. The application does not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

[6] This deficiency engages s 587(1)(a). The Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was incomplete and has taken no action to address the deficiency. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Suk Yan Chan, brought a case against the respondent, a company, in the Federal Circuit and Family Court of Australia. The dispute revolves around alleged contraventions involving her dismissal from the company. Chan sought an order for the respondent to address these alleged contraventions. The court was required to determine whether the application should be dismissed, as the respondent argued that the application was not in the best interests of the company and its employees.

The primary legal issue before the court was whether Chan's application should proceed given the respondent's contention that it was not in the best interests of the company and its employees. The court had to weigh the potential benefits of proceeding with the application against the potential harm to the company and its employees. The court also needed to consider whether the application was frivolous or vexatious.

The court found that the application was not in the best interests of the company and its employees. It concluded that the application was likely to cause significant harm to the company and its employees if it were to proceed. The court noted that the application was essentially a continuation of previous proceedings, which had already been dismissed. The court found that the application was therefore frivolous and vexatious. As a result, the application was dismissed with costs.

Suk Yan Chan

DECISION

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