Amal Khan v QP Management Pty Limited

[2019] FWC 6404

[2019] FWC 6404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amal Khan
v
QP Management Pty Limited
(U2019/8470)

COMMISSIONER HAMPTON ADELAIDE, 16 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] On 31 July 2019, Ms Amal Khan made an application under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer QP Management Pty Limited.

[2] Ms Khan did not pay the required fee.

[3] Section 395 of the FW 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.”

[4] On 1 August 2019, the Fair Work Commission (the Commission) advised Ms Khan by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[5] On 9 August 2019, the Commission attempted to contact Ms Khan via telephone in relation to the correspondence dated 1 August 2019. A voicemail message was left.

[6] On 21 August 2019, the Commission attempted to contact Ms Khan again by telephone. No response was received from Ms Khan.

[7] On 23 August 2019, the Commission sent Ms Khan an email requesting that she make contact with the Commission by 30 August 2019 to pay the required application fee or to apply for the fee to be waived. Ms Khan was advised that failure to make payment or return the form to have the application fee waived may result in the application being dismissed without further notice. No response was received from Ms Khan and payment of the required fee has not been made.

[8] 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 prospects of success.

[9] 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. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the purported application. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order2 to this effect will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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

 2   PR712397