Melisson Vu v Xl Express (Logistics) Pty Ltd

[2022] FWC 66

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Melisson Vu
v

Xl Express (Logistics) Pty Ltd

(U2021/11449)

COMMISSIONER BISSETT

MELBOURNE, 18 JANUARY 2022

Application for an unfair dismissal remedy

On 9 December 2021 Ms Melisson Vu 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). Ms Vu alleged she was unfairly dismissed by XI Express (Logistics) Pty Ltd (the Respondent) on 23 November 2021.

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

On 13 December 2021 the Commission attempted to contact Ms Vu on her nominated telephone number to discuss payment of the required fee however, Ms Vu did not answer the call. A voicemail message was left requesting Ms Vu contact the Commission to arrange payment of the fee.

Later that day, the Commission emailed correspondence to Ms Vu’s nominated email address advising 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 was not made or a waiver form was not received within 14 days, the application may be dismissed.

A final attempt to contact Ms Vu was made by the Commission on 11 January 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Ms Vu that payment of the required fee was still outstanding.

To date there has been no response from Ms Vu and 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 prospect 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 with this decision.

COMMISSIONER

[1] PR737533.

Printed by authority of the Commonwealth Government Printer

In the matter of Melisson Vu v Xl Express (Logistics) Pty Ltd, the applicant Ms Vu sought a remedy for unfair dismissal against her employer under section 394 of the Fair Work Act 2009. The application was made on 9 December 2021 and was incomplete as Ms Vu failed to pay the required fee or file a completed waiver form. The Fair Work Commission (FWC) made multiple attempts to contact Ms Vu to discuss the incomplete application and seek payment of the fee, but these attempts were unsuccessful. Despite warnings that the application may be dismissed if the fee was not paid or a waiver form received within 14 days, no action was taken by Ms Vu.

The legal issues for the FWC to consider were whether the application was made in accordance with the Fair Work Act, whether the application was frivolous or vexatious, and whether the application had a reasonable prospect of success. The FWC found that the application was not made in accordance with the Act because the required fee was not paid, and dismissed the application pursuant to section 587(1)(a) of the Act. The FWC noted that the application was not frivolous or vexatious, and there was no evidence to suggest that the application had no reasonable prospect of success.

As a result of the dismissal, an order was issued pursuant to section 587(1)(a) of the Fair Work Act. The applicant's failure to pay the required fee or file a completed waiver form resulted in the dismissal of her application for unfair dismissal. The FWC emphasised the importance of complying with the requirements of the Fair Work Act when making an application to the Commission.

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