Mrs Hien Dang v Metro Assist Limited

[2018] FWC 88

[2018] FWC 88

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mrs Hien Dang
v
Metro Assist Limited
(U2017/13209)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 5 JANUARY 2018

Application for relief from unfair dismissal – required fee not paid – non-responsive applicant – application dismissed

[1] On 12 December 2017, Mrs Hien Dang made an application for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act).

[2] Mrs Dang did not pay the required fee.

[3] On 13 December 2017, a telephone call was made to Mrs Dang requesting payment details for the application fee. Mrs Dang informed the Fair Work Commission (the Commission) that she was unsure if she wanted to proceed with her application due to conflicting information that she had received. Mrs Dang was advised at this stage her application will be treated as incomplete due to the application being made without payment. Correspondence was sent to Mrs Dang by post and to her email address advising that if she wished to proceed with her application she will need to advise the Commission within 14 days of the date of the letter or her application may be dismissed.

[4] On the 13 December 2017, the Commission received an email from Mr Graham South from the Australian Services Union (ASU) requesting that they be removed as representatives for Mrs Dang as the ASU did not prepare or submit this application and does not act for Mrs Dang in this matter.

[5] Section 395 of the FW Act, 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.

[6] On 28 December 2017, the Commission attempted to contact Mrs Dang in relation to the correspondence dated 13 December 2017 that was sent to her by post and email regarding payment of the application fee. No response was received from Mrs Dang and payment of the required fee has not been made.

[7] On the 2 January 2018, a further telephone call was made to Mrs Dang in relation to payment of the application fee that is still currently outstanding and her decision to proceed with her application. To this date Mrs Dang has not contacted the Commission, filed a notice of discontinuance or replied to the correspondence.

[8] 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.

[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 FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to section 587(1)(a) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

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