Ms Danyang Zhang v Chen Shan Lawyers

[2021] FWC 606

[2021] FWC 606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Danyang Zhang
v
Chen Shan Lawyers
(C2021/16)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Ms Danyang Zhang (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by Chen Shan Lawyers in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 4 January 2021. Upon lodgement, the Applicant filed an unsigned application for waiver of the lodgement fee (waiver application).

[4] The same day, the Commission telephoned the Applicant. The call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission. Subsequently, a letter was emailed to the Applicant advising that she must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

[5] On 19 January 2021, the Commission telephoned the Applicant. A voicemail message was left requesting the Applicant contact the Commission regarding the incomplete application. The Applicant was also advised that unless the lodgement fee was paid or a completed waiver application was received within 14 days, the application may be dismissed.

[6] On 20 January 2021, the Commission telephoned the Applicant. During the call, the Applicant requested an extension to file a completed waiver application. A letter was subsequently issued to the Applicant advising that unless the lodgement fee was paid or a completed waiver application was received within a further period of seven days, the application may be dismissed. A SMS text message was also sent to the Applicant, and which noted that there was a problem with the application.

[7] On 28 January 2021 the Commission telephoned the Applicant, and a voicemail message was left advising that the application remained incomplete.

[8] On 17 February 2021, the Commission telephoned the Applicant again. A voicemail message was left advising the Applicant that in the absence of a return call regarding the unpaid lodgement fee by 19 February 2021, the application may be dismissed.

[9] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[10] In relation to an application made pursuant to s 365 of the Act, s 367 provides:

367 Application fees

(1) The application 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 section 365; 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.

(emphasis added)

[11] Section 587 of the Act provides that:

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.

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

(emphasis added)

Consideration and conclusion

[12] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[13] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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