Anita Tang v Coles Supermarket Australia Pty Ltd

[2021] FWC 781

[2021] FWC 781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anita Tang
v
Coles Supermarket Australia Pty Ltd
(U2021/666)

COMMISSIONER BISSETT MELBOURNE, 4 MARCH 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 25 January 2021, Ms Anita Tang made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Ms Tang was incomplete in that she did not provide the date her dismissal took effect, did not sign the application form and did not pay the filing fee or provide a fee waiver form.

[3] On 27 January 2021, the Commission attempted to contact Ms Tang on her nominated telephone number to request the missing details. Ms Tang did not answer the call and there was no option to leave a voicemail message.

[4] Later that day, the Commission emailed correspondence to Ms Tang’s nominated email address advising that she needs to provide further details as the application was incomplete and that she would need to provide the date her dismissal took effect, sign the form and either pay the filing fee or provide a completed waiver form. That correspondence also advised that if the information was not provided within 14 days, the application may be dismissed.

[5] As the required information was not received, on 8 February 2021 the Commission contacted Ms Tang on her nominated telephone number. Ms Tang advised that she wanted to wait as she is not sure when her dismissal took effect and asked if the Commission would wait until 11 March 2021 before dismissing the matter. Ms Tang was advised that the information was due now and her request may not be granted by a Commission Member and who may dismiss her application if the required information and complete application is not provided.

[6] On 16 February 2021, a final phone call was made to Ms Tang on her nominated telephone number to request the missing details. Ms Tang did not answer the call and there was no option to leave a voicemail message.

[7] Later that day, the Commission emailed correspondence to Ms Tang’s nominated email address advising that she provide further details as the application was incomplete and that she would need to provide the date her dismissal took effect, sign the form and either pay the filing fee or provide a waiver form. That correspondence also advised that if the information was not provided by 23 February 2021, the application may be dismissed.

[8] To date, no response has been received and Ms Tang has not provided the necessary details and the required fee has not been paid and a completed waiver form has not been received.

[9] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

[10] Section 587(1) of the FW Act provides as follows:

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.

[11] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[12] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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