| [2023] FWC 997 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.603 – Varying and revoking the Fair Work Commission’s decisions
Cassandra Thong
v
Virtual Business Partners Pty Ltd
(U2023/2697)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 27 APRIL 2023 |
Varying or revoking the Fair Work Commission’s decisions – s. 603 of the Fair Work Act 2009 – Decision revoked
On 20 April 2023 a Decision[1] dismissing Ms Thong’s application for an unfair dismissal remedy was issued on the basis that Ms Thong had not paid the filing fee or filed a completed waiver form.
On the same day, shortly after the Decision was issued, Ms Thong advised the Commission that she had paid the application fee on 19 April 2023. A review of the Commission’s file confirmed that payment had, in fact, been made on 19 April 2023.
The Commission wrote to the Respondent advising that as Ms Thong had paid the filing fee, I was inclined to revoke the Decision. The Respondent was advised that if it opposed the Decision being revoked it must advise the Commission no later than 4.00 pm on Wednesday 27 April 2023. No material has been received from the Respondent.
Section 603 of the Fair Work Act 2009 (FW Act) provides that the Commission may revoke a decision that is made under the FW Act and may do so on its own initiative. In the circumstances, I exercise my discretion under s.603 of the FW Act to revoke the Decision.
DEPUTY PRESIDENT
[1] [2023] FWC 925
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- AGLC
- Cassandra Thong v Virtual Business Partners Pty Ltd [2023] FWC 997
- Case
- [2023] FWC 997
- Decision Date
CaseChat Overview and Summary
The primary legal issue that arose in this case was whether the Fair Work Commission had the authority to revoke its own decision dismissing Thong’s application for unfair dismissal remedy. This issue was centred around the interpretation and application of section 603 of the Fair Work Act 2009, which explicitly grants the Commission the power to revoke its own decisions. Given that Thong had satisfied the prerequisites for filing her application by paying the requisite fee, and considering the absence of any opposition from the employer, the Deputy President found that the Commission had both the authority and the discretion to revoke the initial dismissal decision.
In exercising the discretion conferred by section 603 of the Fair Work Act 2009, the Deputy President found that the circumstances warranted the revocation of the initial decision. Thong had indeed paid the application fee prior to the decision being issued, and there was no material presented by the employer to contest the revocation. The absence of opposition from the employer further supported the decision to revoke the dismissal. As a result, the Deputy President revoked the initial dismissal decision, allowing Thong’s application to proceed on its merits.
The Fair Work Commission revoked the initial dismissal decision, allowing Cassandra Thong's application for unfair dismissal remedy to proceed. This decision underscores the Commission's authority to correct its own decisions when procedural requirements have been satisfied, and no party opposes such a correction. The revocation paves the way for a substantive review of Thong's unfair dismissal claim against Virtual Business Partners Pty Ltd.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
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