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

[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

[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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1 PR726976

The case of Anita Tang v Coles Supermarket Australia Pty Ltd concerns an application for relief from unfair dismissal made by Anita Tang against Coles Supermarket Australia Pty Ltd. Tang, an employee of Coles, sought relief from her dismissal on the basis that it was unfair. The case was heard in the Fair Work Commission (FWC). The central issue in this case was whether the application for relief from unfair dismissal was valid despite being incomplete. Additionally, the court had to determine whether the dismissal of Tang was lawful under section 587 of the Fair Work Act 2009, which allows the FWC to initiate dismissal proceedings.

The court found that the application for relief from unfair dismissal was indeed incomplete, as it did not address certain essential elements required by the FWC. Despite this, the court proceeded to examine the dismissal under section 587, which empowers the FWC to dismiss a case at its own initiative if the application is not in the appropriate form. The court considered the broader context of the dismissal and the procedural fairness afforded to Tang. Ultimately, the court concluded that the dismissal was justified under section 587 due to the incomplete nature of Tang's application. The decision underscored the importance of adhering to the formal requirements of applications for relief from unfair dismissal.

In summary, the Fair Work Commission dismissed Tang’s application for relief from unfair dismissal, holding that the application was incomplete and did not meet the necessary standards. The court found that the dismissal was lawful under section 587 of the Fair Work Act 2009. The decision highlights the necessity for applicants to ensure their applications are complete and properly addressed to avoid potential dismissals under the Act.

Anita Tang v Coles Supermarket Australia Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established