Jun Lin v The Trustee for Maitland Metro Unit Trust
[2025] FWC 39
•6 JANUARY 2025
| [2025] FWC 39 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jun Lin
v
The Trustee For Maitland Metro Unit Trust
(U2024/9457)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 6 JANUARY 2025 |
Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed under s.587.
On 14 August 2024, Mr Jun Lin made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).
For the reasons that follow, I am satisfied that Mr Lin’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.
Section 395 of the Act is in the following terms:
“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.”
Mr Lin’s application was incomplete because Mr Lin did not pay the required fee or file a completed request to waive the fee, and did not provide the date his employment commenced.
Commission staff contacted Mr Lin on the following dates:
· 20 August 2024 by telephone, SMS and email; and
· 11 September 2024 by telephone.
Mr Lin was advised that he must pay the filing fee or apply for a waiver, and provide the date his employment commenced, if he wished to proceed with the application. Mr Lin was also warned that the application could be dismissed if the filing fee was not paid, and the information regarding the commencement date was not provided, by 3 September 2024.
To date there has been no response from Mr Lin, no fee paid, no waiver request received, and no details provided regarding the date his employment commenced.
Section 587 of the Act includes the following provisions:
“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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Mr Lin’s application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Lin’s application.
Mr Lin has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored and Mr Lin has filed to prosecute his case.
In the circumstances, I am satisfied that Mr Lin’s application should be dismissed.
I have separately made an order dismissing Mr Lin’s application (PR783016).
DEPUTY PRESIDENT
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