Jun Lin v The Trustee for Maitland Metro Unit Trust Summary

[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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Jun Lin brought an unfair dismissal application against The Trustee for Maitland Metro Unit Trust before the Fair Work Commission. The matter was dismissed on the basis that Mr Lin had not complied with the requirements of the Fair Work Act 2009. Specifically, Mr Lin failed to pay the application fee and provide the date his employment commenced, both of which are mandatory under the Act. The Commission had contacted Mr Lin multiple times to inform him of these deficiencies, but he did not respond or take any action to remedy the situation.

The legal issues that the Commission had to address included whether the application was made in accordance with the Act, particularly in terms of the prescribed fee and the provision of the employment commencement date. Under section 395 of the Fair Work Act, an application to the Fair Work Commission must be accompanied by the prescribed fee, or a completed request for a waiver of that fee. Additionally, the Act requires that the applicant provide the date their employment commenced. The Commission found that Mr Lin's application did not meet these requirements, and thus, it was not in accordance with the Act. The Commission also considered whether the application could be dismissed under section 587 of the Act for being non-compliant.

In its reasoning, the Commission noted that Mr Lin had been given multiple opportunities to rectify the deficiencies in his application but had not done so. The Commission referred to previous cases, such as Bond v Carbridge Pty Ltd T/A Carbridge, which emphasised the importance of applicants complying with the procedural requirements of the Act. Given that Mr Lin had ignored the Commission's inquiries and warnings, the Commission exercised its discretion under section 587 to dismiss the application. The Commission concluded that the application had no reasonable prospects of success due to its non-compliance with the Act.

The Commission dismissed Mr Lin’s application and made an order to that effect. This decision highlights the importance of adhering to the procedural requirements when making an application to the Fair Work Commission. Failure to comply with these requirements can result in the dismissal of the application, regardless of the merits of the case.

Jun Lin v The Trustee for Maitland Metro Unit Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established