Chen-Hsiang Hsu v Whizztel Tweed Pty Ltd

[2024] FWC 1772

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chen-Hsiang Hsu
v

Whizztel Tweed Pty Ltd

(U2024/5586)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 JULY 2024

Application for an unfair dismissal remedy

On 17 May 2024 Mr Chen-Hsiang Hsu, made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

The application form filed by Mr Hsu was incomplete in that he did not fully pay the application fee and only partially completed an application to waive the fee, nor did Mr Hsu provide the date he commenced employment.

On 22 May 2024, Commission staff attempted to call Mr Hsu to request the missing details. Mr Hsu did not answer the call. A voicemail message was left asking Mr Hsu to provide a completed fee waiver form and provide the date his employment started.

Later that day, Commission staff emailed Mr Hsu advising that the application was incomplete and asking that the outstanding details be provided. The correspondence also advised that if the outstanding information was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Hsu, asking that he contact the Commission.

On 11 June 2024 Commission staff attempted to contact Mr Hsu. The call was not answered and no voicemail service was available.

To date, no response has been received and the application remains incomplete and unpaid.

Section 395 of the 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.

Section 587 of the 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.

Hr Hsu’s application was not made in accordance with the Act (per s.587(1)(a)) because the application is incomplete and the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Hsu’s application.

I am satisfied that Hr Hsu’s application should be dismissed. Mr Hsu has been given ample opportunity to rectify the deficiencies in the application. The Commission’s inquiries, requests and warnings have been ignored.

I have separately made an order dismissing Mr Hsu’s application (PR776747)

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by Chen-Hsiang Hsu for an unfair dismissal remedy against his employer, Whizztel Tweed Pty Ltd. Hsu lodged an application under section 394 of the Fair Work Act 2009, but the application was incomplete. Notably, Hsu did not fully pay the application fee, only partially completed a fee waiver application, and failed to provide the date he commenced employment. Despite multiple attempts by the Commission to contact Hsu and request the missing information, including a voicemail, email, and SMS, Hsu did not respond, leaving the application incomplete and unpaid.

The central legal issue the Commission had to address was whether Hsu's application could be dismissed due to its incompleteness and Hsu's failure to comply with the requirements of the Fair Work Act. Specifically, the Commission needed to consider whether the application could be dismissed under section 587 of the Act, which allows for the dismissal of applications that are not made in accordance with the Act, are frivolous or vexatious, or have no reasonable prospects of success. The Commission also had to consider the discretion provided under section 587 to dismiss applications either on its own initiative or on application.

The Fair Work Commission found that Hsu’s application was not made in accordance with the Act due to the incomplete submission and non-payment of the required fee. Given that the Commission had given Hsu multiple opportunities to rectify the deficiencies in his application and that Hsu had ignored these requests and warnings, the Deputy President concluded that Hsu’s application should be dismissed. The decision was made under the discretion provided by section 587(1)(a) of the Act. Consequently, the Deputy President dismissed Hsu’s application (PR776747).

No further orders were made beyond the dismissal of Hsu’s application.

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