Alicia Gardner v Blue Cap Mining

[2021] FWC 6351

[2021] FWC 6351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alicia Gardner
v
Blue Cap Mining
(U2021/8549)

COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 23 September 2021 Ms Alicia Gardner 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). Ms Gardner alleged she was unfairly dismissed by Blue Cap Mining (the Respondent) on 23 September 2021.

[2] The initial application was incomplete in that Ms Gardner did not provide details of the Respondent name and did not pay the required fee. A fee waiver form (Form F80) submitted by Ms Gardner could not processed as it was also incomplete.

[3] On 27 September 2021 the Commission contacted Ms Gardner on her nominated telephone number to discuss her incomplete Form F2 and Form F80 applications. The Commission informed Ms Gardner that the Respondent details were missing on the Form F2, and Questions 3 and 4 of the Form F80 were left unanswered. Ms Gardner advised she was unable to edit documents on her mobile phone. The Commission informed Ms Gardner that she may reply via return email to the correspondence the Commission would shortly be issuing to provide the missing details. Ms Gardner understood.

[4] Later that day, the Commission emailed correspondence to Ms Gardner’s nominated email address advising the Respondent details were missing and that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if the Respondent details were not provided, and payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] On 28 September 2021 the Commission received email correspondence from Ms Gardner advising she was unable to download the email attachments issued to her on 27 September 2021 and requested the Commission to send her the attachments in a different format. The Commission responded to her email by sending her a new copy of the correspondence (originally sent on 27 September 2021), and advising she may provide responses via return email.

[6] On 11 October 2021 the Commission attempted to contact Ms Gardner. The call was not answered, and a detailed voicemail message was left advising details of the Respondent on the Form F2, and responses for Questions 3 and 4 of the Form F80 were still outstanding. The voicemail message stated Ms Gardner may respond via return email and she may refer to the correspondence issued on 27 September 2021 for more information. The Commission also advised if no response was received by 13 October 2021, the application would be referred to a Member and may be dismissed.

[7] A final attempt to contact Ms Gardner was made by the Commission on 14 October 2021 to request the outstanding information. The call was not answered and again a detailed voicemail message was left advising details of the Respondent on the Form F2, and responses for Questions 3 and 4 of the Form F80 were still outstanding. The voicemail message mentioned Ms Gardner may simply respond via return email. The Commission reiterated the application will be referred to a Member and a decision may be published on the Commission’s website if the information is not received at absolute latest by 15 October 2021.

[8] On 15 October 2021 the application was referred to me. It was discovered that while the Respondent name had not been properly provided in the Form F2, it appeared it could be ascertained from an attachment to Ms Gardner’s answer to Question 3.1 (What were the reasons for the dismissal, if any, given by the employer?) that the Respondent name was Blue Cap Mining The application was subsequently referred back to registry for follow up.

[9] On 16 November 2021 the Commission emailed correspondence to Ms Gardner informing her that in order for her application to proceed, she would need to confirm if Blue Cap Mining was her employer, and to complete questions 3 and 4 of the fee waiver or pay the required fee. Ms Gardner was informed that if a response was not received by Tuesday 23 November 2021, the application would be dismissed without further correspondence from her.

[10] Later that day Ms Gardner confirmed the Respondent name as Blue Cap Mining. On 17 November 2021 a completed waiver form or payment of the required fee was again sought from Ms Gardner by email correspondence.

[11] There has been no response from Ms Gardner to the correspondence of 17 November 2021, the required fee has not been paid and a completed waiver form has not been received.

[12] 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.

[13] 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.

[14] 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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