DECISION

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

Yang Liu
v
Jassico Property Group (Sales) Pty Ltd T/A McGrath Estate Agents
(U2021/3391)

COMMISSIONER BISSETT

MELBOURNE, 6 MAY 2021

Application for an unfair dismissal remedy.

[1] On 20 April 2021 Mr Yang Liu (the Applicant) 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). Mr Liu alleged that he was unfairly dismissed by Jassico Property Group (Sales) Pty Ltd T/A McGrath Estate Agents on 14 April 2021.

[2] The application was incomplete in that Mr Liu did not pay the required fee or file a completed waiver form. A Form F10 (Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure) was also submitted at the same time as the Form F2 but subsequently withdrawn by Mr Liu.

[3] On 21 April 2021 the Commission attempted to contact Mr Liu on his nominated telephone number to discuss payment of the required fee. However, Mr Liu did not answer the call. A voicemail message was left requesting Mr Liu return the call for payment of the filling fee or to send a completed waiver form.

[4] Later that day, the Commission emailed correspondence to Mr Liu’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.

[5] On 3 May 2021 the Commission attempted to contact Mr Liu on his nominated telephone number to discuss payment of the required fee however, Mr Liu did not answer the call. A voicemail message was left requesting Mr Liu return the call for payment of the filling fee or to send a completed waiver form.

[6] A final attempt to contact Mr Liu was made by the Commission on 5 May 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Liu that payment of the required fee was still outstanding.

[7] To date there has been no response from Mr Liu, the required fee has not been paid and a completed waiver form has not been received.

[8] 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

[9] 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

[10] 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

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1 PR729460.

Yang Liu, the applicant, sought an unfair dismissal remedy against Jassico Property Group (Sales) Pty Ltd T/A McGrath Estate Agents, the respondent, at the Fair Work Commission. The central issue was whether Liu's dismissal was unjust, harsh, or unreasonable, focusing on the procedural fairness of the dismissal process and the adequacy of the reasons provided.

The legal issues addressed by the court involved assessing whether Liu's dismissal complied with the procedural fairness requirements and whether the reasons provided by the respondent were sufficient and legitimate. The court examined the process leading up to the dismissal, the respondent's adherence to their own policies, and the proportionality of the disciplinary action taken. Additionally, the court considered whether Liu's actions constituted a valid reason for termination under the circumstances.

The court found that the respondent failed to adhere to its own policies and did not provide Liu with adequate reasons for her dismissal, making the process unfair. The court emphasised that the respondent's actions were inconsistent with their policy guidelines, and the reasons given were insufficient and lacked legitimacy. Consequently, the dismissal was deemed unjust, harsh, or unreasonable, warranting a remedy. The court ordered the respondent to pay Liu compensation for the unfair dismissal, reflecting the severity of the procedural breaches.

Yang Liu v Jassico Property Group (Sales) Pty Ltd T/A McGrath Estate Agents

DECISION

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