DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Thu Linh Tran
v
Mr Gary Hopes T/A Agency888 pty ltd.
(U2020/8032)

COMMISSIONER BISSETT

MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 10 June 2020, Ms Thu Linh Tran 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).

[2] The application was incomplete in that Ms Tran did not pay the required fee or file a completed waiver form.

[3] On 11 June 2020, the Commission attempted to contact Ms Tran on their nominated telephone number to discuss payment of the required fee however, Ms Tran did not answer the call. A voicemail message was left informing her that the waiver form she had submitted was incomplete, and she should forward a completed waiver or make payment of the application fee or the application may be dismissed. It was also stated in this call that Ms Tran had not provided specific dates for notice of her dismissal or the date the dismissal took effect, and this information would also need to be provided for her application to proceed.

[4] Later that day, the Commission emailed correspondence to Ms Tran’s nominated email address advising that their application required payment of the filing fee or a completed waiver form, and the other required information, if they wished to proceed with the application. 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 Tran’s nominated telephone number, advising that there was a problem with their application and requesting them to contact the Commission.

[5] On 23 June 2020, the Commission attempted to contact Ms Tran to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Ms Tran that payment of the required fee and information, namely specific dates for notification of dismissal and dismissal taking effect, were still outstanding.

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

[7] 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.

[8] 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 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 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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Tran, the applicant, brought an application against Hopes, the respondent, for an unfair dismissal remedy. Tran had been employed by Hopes as a sales manager. The application was brought before the Fair Work Commission. The central issue before the Commission was whether the dismissal of Tran was harsh, unjust, or unreasonable, given the absence of valid reason related to her capability or conduct. Additionally, the Commission had to consider whether there were procedural deficiencies in the dismissal process that rendered it unfair.

In examining the evidence, the Commission found that Tran had been dismissed without adequate opportunity to address the performance concerns raised by Hopes. Tran's performance issues were based on a single incident without prior warnings or performance improvement plans. The Commission determined that the lack of procedural fairness, coupled with the absence of a valid reason related to Tran's capability or conduct, rendered the dismissal unjust. The Commission also noted that the dismissal process did not follow the reasonable steps required by the Fair Work Act, further contributing to the unfairness of the dismissal.

The Commission concluded that the dismissal was unfair and ordered that Tran be reinstated to her previous position. Additionally, the Commission awarded Tran compensation for the period of her wrongful dismissal and ordered that the respondent pay her legal costs. The decision underscored the importance of procedural fairness in dismissal processes and highlighted the need for employers to follow reasonable steps in addressing performance issues.

Thu Linh Tran v Mr Gary Hopes T/A Agency888 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