Joe Cheng v Golden Rice Chinese Restaurant Hurlstone Park

[2019] FWC 5116

[2019] FWC 5116

FAIR WORK COMMISSION

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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[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

(c) the application has no reasonable prospects of success.

[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

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