Tianjun Qiu v Agri West Pty Ltd

[2017] FWC 5242

[2017] FWC 5242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tianjun Qiu
v
Agri West Pty Ltd
(U2017/9115)

COMMISSIONER MCKENNA SYDNEY, 10 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 22 August 2017, Tianjun (“Eddie”) Qui (also known as “Eddie Yau”) (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy concerning the termination of his employment by Agri West Pty Ltd (“the respondent”).

[2] The respondent raised a number of objections to the application, relevantly including whether the applicant met the minimum employment period. After earlier Commission processes, the file was then allocated to me in connection with the determination of the threshold jurisdictional issue about the minimum employment period.

[3] I determined to initially list the matter on 10 October 2017 for a pre-hearing conference and/or directions proceeding by telephone. In particular, and as advised to the parties in advance of the proceeding in correspondence dated 6 October 2017, I proposed to raise with the parties that, among others matters as to length of service, the applicant appeared to place reliance on a contract of employment referring to a person named “Eddie Yau” whereas the respondent appeared to place reliance on a subsequent contract of employment which referred to the applicant. Moreover, the correspondence from my office noted that the remedy being sought seemed principally to refer to matters concerning alleged underpayments.

[4] In the proceeding on 10 October 2017, the applicant was assisted by a Cantonese-speaking interpreter and the respondent’s representative, Ms J Zhang, was assisted by a Mandarin-speaking interpreter. Over the course of the pre-hearing proceeding, it emerged as common ground that matters concerning alleged underpayments of annual leave and superannuation had resolved following the initial conciliation by a Commission conciliator. While the issue concerning payment of certain meal allowances had not resolved, the respondent’s representative confirmed that, subject to the provision of receipts, payment for reasonable claims in such respects also would be made.

[5] More significantly and relevantly, as to the threshold jurisdictional matter which was the subject of the allocation before me, the respondent’s representative agreed in the proceeding on 10 October 2017 that the applicant had been employed by the respondent for a period of more than one year around the time of the termination of employment. In consequence of the fact that the parties, in the end, agreed the applicant met the minimum employment period, I decided to dismiss the respondent’s jurisdictional objection (a formal order in that regard issues with these reasons).

[6] Although there was agreement between the parties concerning the matters to which I have referred concerning the alleged underpayments and the minimum employment period, there was no resolution as to substantive matters concerning the application for an unfair dismissal remedy. In consequence of the dismissal of the respondent’s jurisdictional objection, the matter will thereby now be the subject of directions and given a hearing date. As to the directions that will issue in such respects, I reinforce what I stated in the proceedings today, namely, that an application made under s.394 of the Act is not an appropriate vehicle for the applicant to seek, in effect, to claim payment for a type of contractual breach in seeking what otherwise would have been the unexpired part of the period of time specified in the contract of employment.

[7] The application is concerned only with an application for an unfair dismissal remedy – in circumstances where, the respondent submitted, the applicant, together with the only other employee of the company, was the subject of a genuine redundancy. Given the extent of materials that already have been filed by each party concerning to the threshold issue, I trust the parties will, as to the further stage of the proceedings, direct their attention in relation to the directions and in the arbitration conference/hearing to matters which relevantly arise for determination.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR596699>