Ying Fang Tan v RK Saloon Pty Ltd
[2023] FWC 342
•15 FEBRUARY 2023
| [2023] FWC 342 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ying Fang Tan
v
RK Saloon Pty Ltd
(U2022/11233)
| COMMISSIONER BISSETT | MELBOURNE, 15 FEBRUARY 2023 |
Application for an unfair dismissal remedy
On 24 November 2022 Ms Ying Fang Tan lodged an application for unfair dismissal remedy with the Commission. In that application Ms Tan did not provide the date of effective dismissal. On 25 November 2022 she filed an updated application alleging that she was unfairly dismissed by her employer, RK Saloon Pty Ltd (the Respondent) on 27 August 2022.
The matter was listed for conciliation on 19 December 2022. The contact person for the Respondent contacted the Commission to advise that he would not be participating in the Commission’s processes, and that the Respondent would not be filing a Form F3 – Employer Response or attending conciliation. Although the Respondent was copied into further correspondence in the matter the Commission did not receive any further correspondence from him.
The matter was then allocated to me. As Ms Tan lodged her application on 24 November 2022, her application was 89 days late on her own reckoning of the date of dismissal and was therefore not made within 21 days of the date of dismissal.
My chambers issued Directions to the parties requiring them both to file submissions, witness statements or other evidence in relation to the Commission’s discretion to grant an extension of time to Ms Tan. Ms Tan was advised in this correspondence that, should she fail to provide such submissions to the Commission her application may be dismissed.
No material was received by chambers from either party.
On 10 January 2023 the matter was listed for extension of time hearing. The Respondent did not attend the hearing. Ms Tan did attend the hearing.
As the Applicant had not filed any material, I determined to adjourn the hearing and discuss the matter with Ms Tan.
Ms Tan advised me that she is seeking an order for unpaid wages. On being advised by me that the Commission could not issue an order for unpaid wages, Ms Tan agreed to contact the Fair Work Ombudsman and provide a further update to my chambers as to whether she wished to discontinue her application.
On 8 February 2023 Ms Tan emailed my chambers and advised that the Fair Work Ombudsman had told her it was unable to assist. The Commission notes this with concern.
The Commission does not have the power to make an order for lost wages during employment. Ms Tan has failed to provide any material to demonstrate why her application was filed out of time, however, even if that material was received and the matter was ultimately decided in Ms Tan’s favour, the Commission would be unable to make an order of the kind that Ms Tan seeks. Given the refusal of the Respondent to participate in these proceedings, it is likely that Ms Tan would need to pursue the enforcement of any order in a Court.
Section 587 provides that:
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 prospect of success.
In circumstances where Ms Tan has failed to file any submissions in accordance with the directions of the Commission and where the Commission does not have the power to grant the outcome she seeks, I am satisfied that Ms Tan’s application has no reasonable prospect of success. In reaching this conclusion however I do encourage Ms Tan to continue to pursue her claim for lost wages through the Fair Work Ombudsman and/or to seek legal advice on this question.
I therefore order that the application be dismissed under s.587(1)(c).
COMMISSIONER
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