Yang v Best International Group Pty Ltd [2019] FCA 323

Yang v Best International Group Pty Ltd [2019] FCA 323

Leave to amend was refused because the proposed claim against Fujitsu was untenable. The s 550 aiding and abetting allegation had no proper particulars and could not be cured on this third attempt. The alternative adverse action pleading did not disclose a proper cause of action: the alleged software issue was not shown to be a complaint, the alleged conduct was not capable of constituting adverse action as pleaded, and the applicant identified no entitlement or right underpinning the alleged complaint or flexible work requests.

Jurisdiction
Australia
Judgment Date
08 March 2019
Procedural Posture
Practice and Procedure; Fair Work Division Proceeding / Third Application for Leave to Amend Statement of Claim
Outcome
Application for leave to amend refused.
Legal Topics
['leave to Amend Statement of Claim' 'adverse Action' 'workplace Rights' 'accessorial Liability' 'fair Work Act 2009 (cth)']
['employment and Industrial Relations' 'practice and Procedure'] ['leave to Amend Statement of Claim' 'adverse Action' 'workplace Rights' 'accessorial Liability' 'fair Work Act 2009 (cth)']

Case Brief

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Procedural Posture

Practice and Procedure; Fair Work Division Proceeding / Third Application for Leave to Amend Statement of Claim

Legal Issues

  1. 1 ['Whether the applicant should be granted leave for the third time to amend his statement of claim to plead a case against Fujitsu.' 'Whether the proposed accessorial liability pleading under s 550 of the Fair Work Act 2009 (Cth) was adequately pleaded.' 'Whether the alleged software complaint and refusal of flexible work requests disclosed a proper adverse action claim against Fujitsu.' 'Whether the Court had jurisdiction to hear a claim against Fujitsu where Fujitsu was not named in the certificate issued under s 368(3) of the Fair Work Act 2009 (Cth).']

Ratio Decidendi

Leave to amend was refused because the proposed claim against Fujitsu was untenable. The s 550 aiding and abetting allegation had no proper particulars and could not be cured on this third attempt. The alternative adverse action pleading did not disclose a proper cause of action: the alleged software issue was not shown to be a complaint, the alleged conduct was not capable of constituting adverse action as pleaded, and the applicant identified no entitlement or right underpinning the alleged complaint or flexible work requests.

Court Disposition

Application for leave to amend refused.

Orders

  • ['The application for leave to amend the further amended statement of claim be dismissed.' 'Parties file submissions as to costs within 7 days of the date of these reasons.']