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

[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.

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.
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Rasier Pacific Pty Ltd.
The respondent has also raised an objection stating that the applicant was not an employee.
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.
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.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ying Diao applied to the Fair Work Commission for relief under the Fair Work Act 2009, alleging unfair dismissal by Uber Technologies Inc T/A Uber Australia Pty Ltd. The respondent contested the application on jurisdictional grounds, claiming the applicant was not an employee and objecting to the nomination of Rasier Pacific Pty Ltd as the respondent’s legal business name. Despite being notified of the jurisdictional concerns and required to respond, the applicant did not engage with the proceedings. Multiple correspondences were sent to the applicant, with a final warning that her application would be dismissed without notice if no response was forthcoming. Ultimately, the application was dismissed for want of prosecution under section 587 of the Act.

The legal issues in this case centred on the jurisdiction of the Fair Work Commission to hear the unfair dismissal application and whether the applicant had complied with procedural requirements. The respondent contested the applicant's status as an employee and raised an objection regarding the nominated legal business name. Additionally, the Commission had to determine whether the application could be dismissed for failing to prosecute the matter as required by the Fair Work Act. The jurisdictional challenges presented by the respondent and the applicant's inaction in responding to the Commission's correspondence were pivotal in resolving the case.

The Vice President found that the Fair Work Commission had the jurisdiction to dismiss the application not only under the specific circumstances outlined in section 587(1) of the Act but also on broader grounds. The phrase "Without limiting when the FWC may dismiss an application" in section 587(1) indicated that the Commission's power to dismiss applications extended beyond the listed reasons. Given the applicant's failure to respond to multiple communications and address the jurisdictional issues raised by the respondent, the Vice President concluded that the application should be dismissed for want of prosecution. This decision was made pursuant to section 587(3)(a) of the Act, allowing the Commission to dismiss an application on its own initiative.

An order will be issued with this decision dismissing the application for want of prosecution. This ruling underscores the importance of procedural compliance in unfair dismissal applications and the Commission's authority to manage its caseload effectively.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established