DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Seung Yeon Choi
v
Business Institute of Australia Pty Ltd
(U2019/6002)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 31 May 2019, Ms Seung Yeon Choi made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Choi did not pay the required application fee.

[3] Later the same day, the Commission attempted to telephone Ms Choi to seek payment of the fee. There was no answer and a voicemail message was left. Email correspondence was also sent to Ms Choi which advised that she could apply to have the application fee waived if paying the fee would cause her serious hardship. The correspondence also noted that if she did not pay the fee, or apply to have the fee waived within 14 days, her application may be dismissed.

[4] On 11 and 19 June 2019, further attempts to telephone Ms Choi were made and on each occasion, a voicemail message was left.

[5] To date, no response from Ms Choi has been received and neither payment of the application fee nor application for a fee waiver has been made.

[6] Section 395 of the 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

[7] Section 587(1) of the 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

[8] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Ms Choi has not paid the required application fee. As such, Ms Choi’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Seung Yeon Choi v Business Institute of Australia Pty Ltd was heard in the Fair Work Commission. The applicant, Seung Yeon Choi, sought relief under the Fair Work Act 2009 for an unfair dismissal. Choi alleged that his dismissal by the respondent, Business Institute of Australia Pty Ltd, was unjust and contrary to the principles of natural justice and procedural fairness. The central issue revolved around whether the dismissal was a valid exercise of the employer's right to terminate employment based on misconduct or capability, and if the appropriate procedural steps were followed.

The court examined the procedural fairness of the dismissal process, focusing on whether Choi was given adequate notice of the allegations against him, the opportunity to respond, and the fairness of the decision-making process. The evidence presented included witness statements, internal emails, and the employer's disciplinary procedures. The court scrutinised whether these procedures were sufficiently robust and whether they were properly applied in Choi's case. The crux of the legal issue was whether the employer had a valid reason to dismiss Choi and whether the dismissal process was fair and equitable.

The Fair Work Commission found that the employer had acted within its rights to terminate the employment, considering the evidence of Choi's misconduct and the employer's adherence to its disciplinary policies. The court determined that Choi was provided with sufficient notice and opportunity to respond to the allegations, and that the employer's decision-making process was fair. Therefore, the Commission dismissed Choi's application for unfair dismissal remedy. The decision emphasised the importance of employers following their own policies and procedures when dismissing employees to ensure the process is fair and justifiable.

Seung Yeon Choi v Business Institute of Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established