Yee Leng Ng v Cafe 63

[2018] FWC 7823

[2018] FWC 7823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yee Leng Ng
v
Cafe 63
(U2018/11032)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 25 October 2018, Miss Yee Leng Ng 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). Miss Ng’s application was accompanied by a payment waiver application form, and further indicated that she was not going to be in Australia from 5 November 2018 until 19 February 2019. Miss Ng advised in her application that she would like to receive documents from the Commission via email, and an email address was nominated for this purpose.

[2] On 26 October 2018, the Commission emailed correspondence to Miss Ng to notify that it declined to waive the application fee and further advising that her application would not proceed until the required fee was paid.

[3] The Commission attempted to telephone Miss Ng on each day of 1 and 8 November 2018 to follow up on the refusal of the waiver and to confirm that she wished to make payment for the application fee to proceed with her matter. On each occasion, Miss Ng was unable to be reached and voicemail messages were left to request her return call.

[4] Also on 8 November 2018, the Commission sent email correspondence to her nominated email address advising that if she wished to proceed with her application, payment of the required fee was to be made as soon as possible. The correspondence further warned that if the required fee was not made within 14 days, her application may be dismissed.

[5] A final attempt to telephone Miss Ng was made on 5 December 2018 in relation to payment of the required fee. Miss Ng could not be contacted and a voicemail message was left requesting that she return the Commission’s call. Following this, further email correspondence was sent to Miss Ng’s nominated email address warning that if she did not pay the required fee within 14 days, her application may be dismissed.

[6] To date, Miss Ng has not responded to the Commission’s correspondence.

[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, Miss Ng’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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