Ying Diao v Uber Technologies Inc T/A Uber Australia Pty Ltd

[2023] FWC 1299

[2023] FWC 1299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ying Diao
v

Uber Technologies Inc T/A Uber Australia Pty Ltd

(U2023/2863)

VICE PRESIDENT CATANZARITI SYDNEY, 1 JUNE 2023

Application for an unfair dismissal remedy.

1. Ying Diao (the applicant) lodged an application against Uber Technologies Inc T/A Uber Australia Pty Ltd (the respondent) on the 25^th of March 2023.
   
   

2. The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Rasier Pacific Pty Ltd.
   
   

3. The respondent has also raised an objection stating that the applicant was not an employee.
   
   

4. On the 18^th of May 2023, correspondence was sent to the applicant in relation to the jurisdictional issues and she was required to respond by the 25^th of May 2023. No response was received at this time.
   
   

5. Further correspondence was sent to the applicant on the 26^th of May 2023 and she was required to respond by the 31^st of May 2023 at 5:00pm. It was in this correspondence that the applicant was advised her application would be dismissed without any notice if no response was received.
   
   

6. To date, the applicant has not responded to any of the correspondence sent by my Chambers.

1. Section 587 of the Act provides:

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

1. The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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