Allira Bentley-Ash v The Trustee for Stella Blue Trust

[2024] FWC 818

[2024] FWC 818

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Allira Bentley-Ash
v

The Trustee for Stella Blue Trust

(U2024/1200)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2024

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

1. On 5 February 2024, Ms Allira Bentley-Ash, 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 Ms Bentley-Ash did not pay the required application fee, nor did she lodge a complete Form F80 – Application for waiver of the application fee (Form F80). The Form F80 provided by Ms Bentley-Ash was not signed.

1. Ms Bentley-Ash advised in her Form F2 – Unfair Dismissal Application (Form F2) that she commenced employment with The Trustee for Stella Blue Trust (the Respondent) in August 2023 and that her dismissal took effect on 5 February 2024.

1. On 6 February 2024, the Commission attempted to contact Ms Bentley-Ash on her nominated telephone number. A voicemail message, which was converted into a short text message, was left requesting that Ms Bentley-Ash call the Commission regarding her incomplete F80 and to confirm her employment dates. Later that day the Commission emailed correspondence to Ms Bentley-Ash’s nominated email address advising her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application and that, on the basis of the information provided in the Form F2, she may not have served the minimum employment period. The correspondence directed Ms Bentley-Ash to file any documents or other evidence to support her claim that she had served the minimum employment period. That correspondence also warned that if she did not make contact with the Commission and pay the application fee, or provide a complete F80, within 14 days the application may be dismissed without further notice.

1. As the required documentation was not received, on 20 February 2024 the Commission attempted to contact Ms Bentley-Ash on her nominated telephone number. However, Ms Bentley-Ash could not be reached. A voicemail message that was converted into a short text message was left requesting that Ms Bentley-Ash call the Commission as her matter was at incomplete and at risk of being referred to a Member and discontinued without further notice.

1. On 19 March 2024, the Commission made a final attempt to contact Ms Bentley-Ash on her nominated telephone number. However, Ms Bentley-Ash could not be reached. A voicemail message was left advising her that, as the Commission had not received payment of the application fee or a completed Form F80, nor the required information to confirm her employment dates, her matter would be referred to a Member. The Commission further advised that failure to provide the requested information by the end of day would likely result in her matter being dismissed and a decision being published on the Commission website. To date Ms Bentley-Ash has not paid the required application fee or completed a Form F80, nor has she provided any response to the Commission’s correspondence.

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587(1) of the FW Act provides as follows:

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.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact her and the reminders, Ms Bentley-Ash has not responded. Furthermore, Ms Bentley-Ash has not responded to the Commission’s queries regarding her service of the minimum employment period in circumstances where the material provided does not establish that she has met this prerequisite. As such, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR772898.

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<PR772897>