Chen-Hsiang Hsu v Whizztel Tweed Pty Ltd

[2024] FWC 1772

[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

1. 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).

1. 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.

1. 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.

1. 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.

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

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

1. 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.

1. 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.

1. 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.

1. 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.

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

DEPUTY PRESIDENT

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<PR776746>