Xun Gong v University of Wollongong

[2022] FWC 1721

[2022] FWC 1721

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Xun Gong
v

University Of Wollongong

(U2022/6267)

COMMISSIONER O’NEILL MELBOURNE, 5 JULY 2022

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

1. On 13 June 2022 Mr Xun Gong 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).

1. The application was incomplete in that Mr Gong did not pay the required fee or file a completed waiver form.

1. On 14 June 2022 the Commission attempted to contact Mr Gong on his nominated telephone number to discuss payment of the required fee however, Mr Gong did not answer the call. A voicemail message was left requesting that Mr Gong contact the Commission to arrange payment of the application fee.

1. Later that day, the Commission emailed correspondence to Mr Gong’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Gong’s nominated telephone number, advising that there was a problem with their application and requesting he contact the Commission.

1. A final attempt to contact Mr Gong was made by the Commission on 28 June 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Gong that payment of the required fee was still outstanding and requesting that Mr Gong urgently contact the Commission to make payment. The voicemail also advised that if the payment was not received the matter may be dismissed.

1. To date there has been no response from Mr Gong, the required fee has not been paid and a completed waiver form has not been received.

1. 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.

1. 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.

2. 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 with this decision.

COMMISSIONER

[1] PR743349

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