Ms Eunyeong Bang

[2021] FWC 4814

[2021] FWC 4814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Ms Eunyeong Bang
(U2021/5992)

COMMISSIONER BISSETT MELBOURNE, 13 AUGUST 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 8 July 2021, Ms Eunyeong Bang 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 did not name a Respondent.

[2] The application made by Ms Bang was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act. There were also multiple issues with the lodged application in that the application did not name the Respondent and that Ms Bang had not served the minimum employment period.

[3] On 9 July 2021, the Commission attempted to contact Ms Bang on her nominated telephone number to discuss payment of the required fee however, Ms Bang did not answer the call. A voicemail message was left requesting that Ms Bang return the Commission’s call to discuss her application.

[4] Later that day, the Commission emailed correspondence to Ms Bang’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. The correspondence also advised that on the basis of the information contained in the application Ms Bang had not served the minimum employment period and that the Respondent details had not been provided. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Bang’s nominated telephone number, advising that there was a problem with her application and requesting she contact the Commission.

[5] A final attempt to contact Ms Bang was made by the Commission on 21 July 2021 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Ms Bang that payment of the required fee was still outstanding and noting the issues with her application.

[6] To date there has been no response from Ms Bang, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[8] 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.

[9] 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.

[10] 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

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