Ms Vuong Tran v Linfox Australia Pty Ltd

[2024] FWC 1582

[2024] FWC 1582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394––Unfair dismissal

Ms Vuong Tran
v

Linfox Australia Pty Ltd

(U2024/4448)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 AUGUST 2024

Application for an unfair dismissal remedy – dismissal under s.587 of the Act at the Commission’s initiative.

1. Ms Vuong Tran (the Applicant) lodged an unfair dismissal application (Form F2) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 17 April 2024.

1. The application was incomplete in that Ms Tran did not pay the required fee or file a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 26 April 2024, the Commission emailed correspondence to Ms Tran’s nominated email informing her that her Form F80 was incomplete. The correspondence directed Ms Tran to lodge a complete Form F80 in the Commission within 14 days. That correspondence warned Ms Tran that if the Commission does not receive a completed Form F80, her case might be dismissed. 

1. A further attempt to contact Ms Tran on her nominated telephone number was made by the Commission on 8 May 2024. The call was not answered and a voicemail was left informing her of the risk of the matter being dismissed if she did not provide a completed Form F80.

1. There was no response from Ms Tran to either the email or phone call, to date the required fee has not been paid and nor has a completed Form F80 been received.

1. Section 395 of the 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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) (Regulations) sets out the amount of the fee for making an unfair dismissal application.

1. Section 587 of the Act relevantly provides as follows:

“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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The material before the Commission indicates that Ms Tran has not satisfied the requirement of lodging a complete Form F80. and, therefore, I am satisfied that her application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite attempts by the Commission to contact Ms Tran, there has been no response. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT 

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR776125.

Printed by authority of the Commonwealth Government Printer

<PR776124>