Tran Minh Khoi Nguyen v Wevolt Pty Ltd

[2024] FWC 765

[2024] FWC 765

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Tran Minh Khoi Nguyen

v

Wevolt Pty Ltd

(U2023/12612)

DEPUTY PRESIDENT O'KEEFFE PERTH, 25 MARCH 2024

Application for an unfair dismissal remedy

1. On 16 December 2023, Tran Minh Khoi Nguyen (the Applicant) made an application to the Fair Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Wevolt Pty Ltd (the Respondent).

1. On 27 December 2023, the Respondent lodged their response to the application, raising the following jurisdictional objections:

• The dismissal was a case of genuine redundancy

• The Applicant’s employment does not meet the minimum employment period

• The employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code

1. On 15 February 2024 a mention hearing was held.  By consent of both parties, a conciliation conference was held directly after the mention hearing.  It appeared to me that if the Respondent was indeed a small business employer, then the Applicant clearly did not meet the minimum employment period and I raised this with the Applicant.  It was agreed that if the Respondent provided evidence that it was a small business, the Applicant would discontinue his application.  The Respondent was asked to provide a statutory declaration setting out the number of employees it had at the time of the Applicant’s termination, which it subsequently did albeit one day later than agreed. 

1. The Applicant did not accept the statutory declaration as he claimed that it contained a technical error in that the person witnessing the declaration had not signed the page containing the table setting out the names of the Respondent’s employees.  I advised the Applicant that in my view the statutory declaration was sufficient to establish that the number of employees was less than fifteen and I suggested that he discontinue his application.  The Applicant refused to do so and so I suggested that the Respondent re-submit a statutory declaration making it clear that it had less than fifteen employees at the time of the Applicant’s dismissal and also correcting the technical error.  The Respondent subsequently provided that statutory declaration.

1. Following this, the Applicant was invited to discontinue his application. However, the Applicant did not respond. My Chambers then wrote to the Applicant advising that if he did not discontinue his application, I would use the powers conferred by s.587 of the FW Act to dismiss his application. No reply was received from the Applicant.

1. Section 587 of the FW Act states:

   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.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

1. Having regard to the information currently before the Commission, in this instance, I am persuaded to exercise my powers under s587(1)(c) to dismiss the application, as the application has no reasonable prospects of success. An order dismissing the application will issue.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR772699>