Bin Wu v H & Y Australia

[2022] FWC 2342

[2022] FWC 2342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Bin Wu

v

H & Y Australia

(U2022/8217)

cOMMISSIONER bISSETT MELBOURNE, 5 SEPTEMBER 2022

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

1. On 10 August 2022, Mr Bin Wu (the Applicant) 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).

1. The application form filed by the Applicant was incomplete in that he has not paid the filing fee.

1. On 11 August 2022, the Commission attempted to contact the Applicant in relation to his application on his nominated telephone number. to request the missing details. The Applicant did not answer the call. A voicemail message was left requesting the Applicant contact the Commission to pay the filing fee and providing the answer to question 3.2 on the application form.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that he needed to provide further details as the application was incomplete. That correspondence also advised that if the filing fee was not paid within 14 days and the information was not provided, the application may be dismissed.

1. As the filing fee was not paid and the requested information not received, on 25 August 2022, the Commission attempted to contact the Applicant on his nominated telephone number. A voicemail message was left requesting the Applicant provide the information sought and pay the outstanding filing fee by close of business 25 August 2022, or the matter may be dismissed.

1. To date, no response has been received and the Applicant has not provided the necessary details as requested nor has the required fee been paid or a completed waiver form been provided to the Commission.

1. 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.

1. 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 prospects of success.

1. Having regard to the circumstances of this matter, I am satisfied that as the application was not fully completed or accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR745468

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