Fair Work Commission|2025-06-13

Mr Yi-Hsien Chou v Steadfast Shareholding Pty Ltd [2025] FWC 1617 (13 June 2025)

s.394 - Application for unfair dismissal remedy

Application for relief from unfair dismissal - application for indefinite adjournment pending civil proceedings in another jurisdiction - application for adjournment dismissed - matter to be determined - Application for an unfair dismissal remedy

[1] The substantive proceedings are brought under section 394 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). In Yi-Hsien Chou v Steadfast Shareholding Pty Ltd [2025] FWC 769 I dismissed certain jurisdictional objections. The outstanding matters for determination are whether the dismissal was harsh, unjust and unreasonable, and, if so, the question of remedy.

[2] For the reasons set out in the earlier decision, I decided I would hear the parties as to a discrete procedural issue, namely the Respondent's application to indefinitely adjourn the proceedings ("the stay application") pending the outcome of civil proceedings in a different jurisdiction. The Applicant opposes the stay application.

[3] For the reasons that follow I have decided to dismiss the stay application. The substantive matter will be determined.

[4] Section 589(1) of the Fair Work Act provides that the Commission may make decisions as to how, when and where a matter is to be dealt with.

[5] The power to adjourn the proceedings, effectively granting a stay, is a statutory discretion, not an inherent power. The relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion, exercised in the circumstances under which the stay application is made.[1]

[6] Section 577 of the Fair Work Act requires the Commission to perform its function and exercise its powers in a manner that is, among other things:

quick, informal and avoids unnecessary technicalities; and

[7] Section 578 requires the Commission, in performing its functions and exercising its powers in relation to a matter, to take into account, among other things, the objects of the Act and any objects of the relevant Part of the Act, equity, good conscience and the merits of the matter.

[8] Section 3 provides for the object of the Fair Work Act. The most relevant part of the object for present purposes is:

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by ... (e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and ...

[9] The substantive application is brought under Part 3-3, Unfair Dismissal, of the Fair Work Act. Section 381 of the Fair Work Act sets out the objects of Part 3-2, most relevantly as follows:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(b) to establish procedures for dealing with unfair dismissal that:

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.

[10] The Respondent filed submissions in support of its stay application, and a supporting statutory declaration of Mr John Ang, on 2 April 2025.

[11] On 3 April 2025, I issued directions allowing for materials to be filed by the Applicant in response, and by the Respondent in reply.

[12] The Applicant filed submissions and other documents on 17 April 2025.

[13] The Respondent filed submissions in reply and a further statutory declaration of Mr Ang on 24 April 2025.

[14] The Applicant sought to file further submissions on 26 May 2025. It has not been necessary for me to consider whether to grant permission for him to do so in light of the decision I have made on the basis of the materials filed in compliance with my directions of 3 April 2025.

[15] The Respondent submits that that the principles governing the exercise of discretion under section 589 of the Fair Work Act, as well as the factual circumstances outlined in the Commission's decision in Chou v Steadfast Shareholding Pty Ltd,[2] support the granting of a stay in the interests of justice, efficiency, and to avoid the risk of inconsistent findings.

[16] The Respondent further submits that the issues in this proceeding are substantially intertwined with those in the District Court proceedings, and that the resolution of the District Court matter will have a material impact on the determination of this unfair dismissal application.

[17] It submits that the principles relevant to the exercise of this discretion have been articulated in Lucas v Qantas Airways Limited [2023] FWC 1136 (Lucas) and Teys Australia Beenleigh Pty Ltd v AMIEU [2015] FCA 1033 (Teys).

[18] The Respondent acknowledges that this unfair dismissal application was filed prior to the commencement of the District Court proceedings. However, it submits that, as noted in Lucas, the timing of commencement is only one factor to be considered and must be weighed against other considerations, including the risk of inconsistent findings and the complexity of legal issues, which bear more weight.

[19] The Respondent also submits that significant progress has been made in the District Court proceedings, including the filing of pleadings, with the exchange of disclosure and filing of evidence on the horizon.

[20] The Respondent acknowledges that granting a stay may result in some delay in resolving this unfair dismissal application, but says this can be mitigated by case management in the District Court.

[21] The Respondent submits that any potential prejudice to Mr Chou arising from delay is outweighed by the benefits of avoiding inconsistent findings, minimising duplication, and ensuring that the issues are determined by the appropriate forum.

[22] Furthermore, the Respondent has indicated that, with the understanding that proceedings in this jurisdiction are intended to be informal with evidence rules not applying, it had specifically limited the scope of the evidence filed in relation to the Applicant's misconduct in an effort to save time and limit the complexity of the current proceedings.

[23] The Respondent submits that it would suffer significant prejudice if a decision by the Commission is now to be made with a strict approach to evidence comparable to a court's standard on the question of whether there was an unfair dismissal, in circumstances where District Court proceedings are currently on foot in which such strict evidence standards are more appropriately applied and in which the Respondent has indicated a clear intention to file further and significantly more detailed evidence.

[24] The Applicant submits that the stay application "should be rejected due to a sustained failure to provide evidence and a pattern of procedural misconduct designed to delay the fair hearing of this matter." He refers to matters relevant to the conduct of the District Court proceedings.

[25] He submits that the Respondent has admitted that it consciously chose not to provide key misconduct evidence in the current proceeding, "yet paradoxically claims that such evidence is central to the District Court action and justifies a stay."

[26] He submits that despite the Respondent asserting that more detailed evidence would be filed in the Queensland District Court, no such evidence had been tendered as of the date of his submission.

[27] He submits the Respondent's approach seeks to displace the Fair Work Commission's authority to resolve employment matters through the unfounded promise of future evidence in a separate forum, which he submits is an improper basis to stay a statutory claim under the Fair Work Act.

[28] He contests the Respondent's previous assertion that the District Court proceedings are "very much live" on the basis that the Respondent has sought an adjournment of those proceedings, and says the Respondent's conduct "illustrates a pattern of procedural gamesmanship."

[29] The Applicant describes the District Court proceedings as commercial litigation and says it includes claims surrounding the sale of Steadfast's management rights business. He says that proceeding is entirely unrelated to his unfair dismissal and employment status.

[30] In reply, the Respondent submits that to the extent the submissions and other documents filed by the Applicant was filed for the purposes of making any submissions about the Respondent's conduct in the course of the District Court proceedings, they should be disallowed. In the alternative, it makes submissions about its conduct in the District Court proceedings.

[31] It submits it did not withhold evidence in relation to the Applicant's misconduct for an inappropriate purpose. Rather, it filed the evidence it believed to be sufficient to establish that it had reasonable grounds to believe that the Applicant engaged in misconduct, for the purposes of an unfair dismissal complaint. It says it was not the Respondent's understanding that it had to in fact prove the misconduct for the purposes of the current proceedings in the Commission. It submits, however, that the Commission's decision of 18 March 2025 has rejected the Respondent's submissions with respect to its reasonable grounds for dismissing the Applicant, and has now made it clear that whether the Applicant in fact engaged in the alleged misconduct will be directly relevant to its final decision on whether there was in fact an unfair dismissal. It submits that there is therefore a clear and undeniable overlap with the District Court proceedings, in which it says the Respondent's entitlement to relief will similarly turn on whether the Applicant engaged in the alleged misconduct.

[32] It submits that as the Applicant's misconduct largely related to his communications with third parties to which the Respondent was not privy, it is not a trivial task for the Respondent to gather evidence in this regard. However, the Respondent has made significant progress through its investigations after the filing of its evidence in the Commission proceedings, and now expects to have much more detailed evidence that will be filed in the District Court proceedings. It submits it is disingenuous for the Applicant to suggest that the lack of any current evidence filed in the District Court proceedings is indicative of any nefarious intent. It submits that through "the Applicant's own procedural antics," the District Court proceedings are not yet even at the disclosure phase, let alone evidence.

[33] I have taken into account the parties' submissions and supporting materials.

[34] Briefly, it is clear from the filed materials, and I accept, that there are proceedings underway in the District Court of Queensland ("the District Court proceedings"), with matter number BD2742/24, that the parties to these proceedings are also parties to the District Court proceedings, and that the District Court proceedings substantially relate to the same factual matrix as the one that underpins the matters in issue in these proceedings.

[35] The Applicant's supporting documents were not provided under cover of a statutory declaration. The Respondent did not take issue with the genuineness of those documents, though it did take issue with their relevance, to the extent that they were provided to demonstrate the parties' conduct in relation to the District Court proceedings. It has not been necessary for me to consider the parties' conduct in relation to the District Court proceedings, only the existence of those proceedings.

[36] Turning first to the approach to be taken, the objects of the Fair Work Act and the relevant Part of it include providing accessible and effective procedures, effective relief, and a fair go all 'round. The exercise of the statutory discretion must be informed by those objects. The exercise of the statutory discretion to stay proceedings was considered by a Full Bench in Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar.[3] In that case the Full Bench stated:

(a) the statutory discretion must "be exercised having regard to the Commission's central obligation to provide a fair hearing to parties in proceedings before it;"

(i) directly from section 577(a) of the Fair Work Act, which directs the Commission to perform its functions and exercise its powers in a manner that 'is fair and just', and

(ii) from the implied obligation to act judicially;[4] and

(c) that one aspect of the duty to act judicially is "the obligation to afford a party a reasonable opportunity to allow his or her case to be put;"[5] and

(d) that the Commission's primary obligation is to ensure the parties are afforded a fair hearing, and that ultimately the relevant question is: what does justice require in the circumstances?[6]

[37] The Respondent relies on the matter of Lucas, a decision of a single member of the Commission, which applies the Federal Court of Australia decision in Teys.

[38] In Teys, the Court was dealing with a matter that was within its jurisdiction, namely whether the employer had breached its obligations under an enterprise agreement, and thus breached section 50 of the Fair Work Act. This was the starting point for the Court's consideration as to whether to issue an interlocutory injunction restraining the Commission from dealing with the dispute. That is obviously not the case here. This is not an application to the District Court of Queensland for an injunction to restrain the Commission from continuing to deal with the substantive application in these proceedings. Nor are matters under Part 3-2 of the Fair Work Act within the jurisdiction of the District Court of Queensland. Accordingly, this situation is not wholly analogous with the application being considered in Teys. Specifically:

(a) It is this Commission, not the District Court of Queensland, that has the specialist function of deciding unfair dismissal matters under the Fair Work Act.

(b) The District Court of Queensland is a court of record.[7] It has a similar place in the Queensland courts' hierarchy to that of the Queensland Industrial Relations Commission, which is also a court of record.[8] It is not, in contrast to the Federal Court of Australia, a superior court of record.

(c) This is an unfair dismissal matter that does not raise any new or difficult matters regarding the interpretation of the Fair Work Act.

(d) The issues raised are of great importance to the parties but are not of general importance.

(e) Given the factual matrix underpinning the two proceedings is shared, there may be different findings of fact. But the question of whether the Applicant was unfairly dismissed in contravention of Part 3-2 of the Fair Work Act is not a matter that would be determined by the District Court of Queensland and so there would be no inconsistent answer to the question of whether the Applicant had been unfairly dismissed.

(f) Granting the adjournment would result in delay in these proceedings, and the Respondent's material does not establish that the District Court of Queensland proceedings would move quickly.

[39] In the circumstances, Teys is distinguishable and, if it were not, it would not assist the Respondent.

[40] The Respondent acknowledges that this unfair dismissal application was filed prior to the commencement of the District Court proceedings.

[41] The Respondent's proposed delay is not, in my view, warranted, having regard to the progress of the District Court proceedings.

[42] I will deal with the Respondent's submissions that proceedings in the Commission are informal with the rules of evidence not applying, and its argument that it had limited the scope of its evidence is a matter for the Respondent.

[43] Commission proceedings are conducted in the manner required by section 577 of the Fair Work Act. Proceedings here are generally conducted in an informal manner without, for example, pleadings or orders for general inter-party disclosure (discovery). At the same time, the requirement to conduct proceedings informally is balanced with the other requirements of that provision, including fairness and openness.

[44] Section 591 of the Fair Work Act states that the Commission is not bound by the rules of evidence and procedure (whether or not the Commission holds a hearing). That does not render those rules irrelevant. The rules of evidence cannot be ignored to the extent that it causes unfairness between the parties.[9] Commission members are required to act judicially.[10] In Australasian Meat Industry Employees' Union v Dardanup Butchering Company Pty Ltd[11] the Full Bench said:[12]

The tribunal is not bound by the rules of evidence and therefore has a discretion to admit as evidence material that would not be admissible under the rules of evidence. However, this does not mean that the rules of evidence are irrelevant to the exercise of that discretion in response to an objection to the reception of particular evidence. On the contrary, as was pointed out by the Full Bench in Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union the rules of evidence "provide general guidance as to the manner in which the Commission chooses to inform itself". The rules of evidence are not arbitrary and were developed by reference to notions of what is fair and appropriate and, as such, they often provide a good starting point for a consideration of whether an objection to the reception of particular evidence by the tribunal should be upheld or rejected.

[45] The Commission provides ample guidance for unrepresented litigants. I have drawn the parties' attention to that guidance in notes provided with Directions issued in these proceedings. I also observe that the Respondent has indicated that it has legal advisers in relation to the District Court proceedings. No doubt it could have sought advice from those advisers in these proceedings as well.

[46] While I am required to provide the Respondent with a reasonable opportunity to present its case, I am not required to make sure that it takes advantage of that opportunity.[13] The Commission can provide procedural guidance to an unrepresented party if necessary, but it cannot do so in a way that causes unfairness to the other party, and it is each party's responsibility to put forward their best case.

[47] What does justice require in the present circumstances? The Respondent's material is insufficient to warrant the Applicant being deprived of his right to have his application dealt with. The issues that the Respondent raised are not sufficient to outweigh the effects of a stay on the Applicant, or the Commission's obligation to make sure parties get a fair hearing.

[48] In light of the above, I decline to exercise the statutory discretion against adjourning the proceedings indefinitely pending the outcome of the District Court proceedings. The stay application is dismissed.

[49] The next stage of these proceedings is to determine whether the dismissal was harsh, unjust and unreasonable, and, if so, the question of remedy. I reserve that decision and will issue it in due course.

[1] United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 167, [8], applying Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194, [19].

[3] [2018] FWCFB 1255, [47], applied in United Workers' Union v Hot Wok Food Makers Pty Ltd [2022] FWCFB 167, [8]-[11].

[4] Citing Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 519.

[5] Citing Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corp Pty Ltd [1993] HCA 18; (1993) 67 ALJR 389 at 390, and also referring to Re Australian Railways Union and others; Ex parte Public Transport Corporation [1993] HCA 28; (1993) 117 ALR 17 at 23-24.

[6] Visy Board Pty Ltd T/A Visy Board v Ulben Rustemovski and Fahim Ahmadyar [2018] FWCFB 1255, [48].

[9] Re Construction, Forestry, Mining and Energy Union, PR935310, [2003] AIRC 888, [36].

[10] Coal and Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78, [25].

[13] Allesch v Maunez [2000] HCA 40, [35] (Kirby J).

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Court of Queensland Act 1967

Mr Yi-Hsien Chou v Steadfast Shareholding Pty Ltd [2025] FWC 1617

At a glance

Court

Decision date

Source

Judgment (87 paragraphs)

Mr Yi-Hsien Chou v Steadfast Shareholding Pty Ltd [2025] FWC 1617 (13 June 2025)

Parties

Legislation Cited (3)

Cases Cited (5)