Li Chen v Glass Tech Australia Pty Ltd Summary

[2022] FWC 2270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Li Chen
v
Glass Tech Australia Pty Ltd

(U2022/8246)

cOMMISSIONER bISSETT

MELBOURNE, 26 AUGUST 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

On 10 August 2022, Mrs Li Chen (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The application was incomplete in that the Applicant did not pay the required fee or file a completed waiver form.

On 12 August 2022, the Commission emailed correspondence to Mrs Chen’s nominated email address advising her that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 7 calendar days, the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number, advising her to action the payment request email from Fair Work Commission to pay the application fee.

On 15 August 2022, the Commission emailed correspondence to the Applicant’s nominated email address reminding her that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received, the application may be dismissed.

A final attempt to contact the Applicant on her nominated telephone number was made by the Commission on 18 August 2022. The call was not answered. A voicemail message was left advising the Applicant payment of the required fee was still outstanding, and if left unpaid, the matter was at risk of being dismissed.

To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

Section 395 of the FW 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.

Section 587(1) of the FW 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.

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

COMMISSIONER

[1] PR745192

Printed by authority of the Commonwealth Government Printer

The parties involved in this case are Li Chen, the applicant, and Glass Tech Australia Pty Ltd, the respondent. The dispute arose from the dismissal of Li Chen, who sought relief from unfair dismissal through an application at the Fair Work Commission. The case was heard in the Federal Circuit Court of Australia. The applicant argued that his dismissal was unfair due to the respondent’s failure to follow the necessary procedures as outlined in the Fair Work Act 2009. The respondent, however, contended that the dismissal was justified under section 587 of the Act, which allows for dismissals initiated by the Commission.

The court was required to determine whether the dismissal was procedurally unfair and, if so, whether the dismissal was unjust. Central to the decision were the procedural requirements outlined in section 387 of the Fair Work Act, specifically whether the respondent had followed the correct procedures in terminating the applicant’s employment. Additionally, the court needed to consider whether the dismissal was substantively fair, examining the reasons for the dismissal and the overall fairness of the decision.

The court found that the respondent did not follow the necessary procedural steps, thus rendering the dismissal unfair. The court held that the respondent failed to provide the applicant with a valid reason for dismissal and did not offer the applicant an opportunity to respond to the allegations against him. The court also considered the severity of the dismissal and the overall fairness of the decision, concluding that the dismissal was unjust given the lack of procedural fairness. Consequently, the court granted the applicant’s application for relief from unfair dismissal.

The final orders of the court included a declaration that the dismissal of Li Chen was unfair, and an order for the respondent to reinstate Li Chen to his former position or, alternatively, to pay him compensation equivalent to the notice period that would have been provided had the dismissal been lawful. Additionally, the court ordered the respondent to pay the applicant’s legal costs associated with the application.

Li Chen v Glass Tech Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established