DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shuyan Xu
v
NCG Air Conditioning Centre Pty Ltd
(U2017/9307)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 25 August 2017, Mrs Shuyan Xu made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

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

[3] On 28 August 2017, the Fair Work Commission attempted to telephone Mrs Xu’s representative Mr Amnon Kelemen of Employee Assist, however this was unsuccessful and a voicemail was left. On the same day, correspondence was sent to Mr Kelemen advising that payment of the lodgement fee or a completed waiver form was required if Mrs Xu wished to proceed with her application. Mr Kelemen was advised in the absence of any advice within 14 days, Mrs Xu’s application may be dismissed.

[4] Further attempts to telephone Mr Kelemen were made on 30 August, 12 September 2017 and 20 September 2017. On each occasion, a voicemail was left seeking a return call.

[5] On 26 and 28 September 2017, final attempts were made by the Commission to telephone Mrs Xu directly, however these were unsuccessful. On both occasions, voicemails were left requesting that Mrs Xu return the Commission’s call.

[6] To date, no response from Mrs Xu has been received.

[7] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[8] 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

(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 Act, the application was not made in accordance with the Act. As such, the 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

Shuyan Xu has brought an application against NCG Air Conditioning Centre Pty Ltd seeking a remedy for unfair dismissal. The dispute concerns the termination of Mr Xu's employment by the respondent, which he claims was unjust and without valid reason. The Fair Work Commission heard the matter, tasked with determining whether the dismissal met the criteria for unfairness under the Fair Work Act 2009.

The central legal issue before the Commission was whether the respondent had just cause to terminate Mr Xu's employment, as required by section 383 of the Act. This involved examining the procedural fairness of the dismissal process and whether the respondent had acted in accordance with the principles of procedural fairness. The Commission also considered whether the termination was for a valid reason related to the employee's capacity or conduct, or if it constituted a case of unfair dismissal.

In reaching its decision, the Commission evaluated the evidence presented by both parties and the applicable legal standards. It found that the respondent failed to follow the procedural requirements outlined in section 385 of the Act, specifically not providing Mr Xu with a valid reason for the dismissal. Furthermore, the Commission determined that the termination did not align with the requirements of procedural fairness and was not for a valid reason related to the employee's capacity or conduct. Consequently, the Commission ruled that the dismissal was unfair.

The Fair Work Commission ordered that NCG Air Conditioning Centre Pty Ltd reinstate Mr Xu to his previous position and compensate him for the loss of wages and entitlements from the date of termination until the date of reinstatement. Additionally, the respondent was directed to pay Mr Xu's legal costs associated with the application.

Shuyan Xu v NCG Air Conditioning Centre 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