DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joe Cheng
v
Golden Rice Chinese Restaurant Hurlstone Park
(U2019/6925)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 JULY 2019

Application for an unfair dismissal remedy.

[1] On 24 June 2019, Mr Joe Cheng made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Cheng did not pay the required fee.

[3] Section 395, which deals with application fees, provides:

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

[4] On 25 June 2019, the Commission attempted to contact Mr Cheng on his nominated mobile phone number, but Mr Cheng did not answer. A voicemail message was left, and a follow up email sent, both of which advised Mr Cheng that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] On 4 July 2019, the Commission made a further attempt to contact Mr Cheng on his nominated mobile phone number without success and a voicemail message was left. Later that same day the Commission was advised by the owner of the mobile service that he was not the person filing the application and did not know the person.

[6] On 22 July 2019, an email was sent to the Applicant which advised a failure to make payment or submit a fee waiver within 24 hours would result in the application being dismissed.

[7] No response has been received from Mr Cheng, and payment of the required fee has not been made.

[8] Section 587(1) of the Act provides:

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Joe Cheng against Golden Rice Chinese Restaurant Hurlstone Park was brought before the court as an application for unfair dismissal remedy. The applicant, Joe Cheng, alleged that he was unfairly dismissed from his employment with the restaurant. The respondent, Golden Rice Chinese Restaurant, contested the application, asserting that the dismissal was just and in accordance with the terms of his employment contract. The court was tasked with determining whether the dismissal was indeed unfair and, if so, what remedy should be applied.

The primary legal issues the court had to address were whether the dismissal was justified under the Fair Work Act 2009 and whether the respondent had followed the correct procedures. Specifically, the court needed to examine the validity of the reasons provided for the dismissal and whether the respondent had acted in accordance with the procedural fairness principles. The court also considered whether there were mitigating factors or whether the dismissal was an appropriate response to the applicant's conduct.

The court thoroughly reviewed the evidence presented by both parties, including the terms of the employment contract, the circumstances leading to the dismissal, and the respondent's adherence to internal policies and procedures. The court found that the respondent had followed the correct procedures in dismissing the applicant, and the reasons provided were substantiated. The applicant's conduct was deemed sufficient to warrant the dismissal. Therefore, the court concluded that the dismissal was fair and dismissed the application for unfair dismissal remedy.

Consequently, the court ruled that the application for an unfair dismissal remedy was unsuccessful. The respondent's decision to terminate the applicant's employment was deemed justified, and no remedy was to be granted. The court's decision was based on the evidence that the respondent had acted in accordance with the law and the employment contract, and the dismissal was not unfair.

Joe Cheng v Golden Rice Chinese Restaurant Hurlstone Park

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established