Angela Wylie v Lucent Advisory Pty Ltd

[2022] FWC 2616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Angela Wylie
v

Lucent Advisory Pty Ltd

(U2022/8929)

COMMISSIONER BISSETT

MELBOURNE, 28 SEPTEMBER 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587(1)(a) at the Commission’s initiative.

On 2 September 2022 Ms Angela Wylie 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).

The application was incomplete in that Ms Wylie did not pay the required fee or file a completed waiver form.

On 5 September 2022 the Commission sent a payment request to Ms Wylie on her nominated email address, advising Ms Wylie to pay the filing fee within 7 days or their application may be dismissed. A further SMS payment request notification was also sent on the same day.

On the 13 September 2022 a payment reminder email was sent to Ms Wylie’s nominated email address requesting she make payment or risk her application being dismissed.

A final attempt to contact Ms Wylie was made by the Commission on 26 September 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Ms Wylie that payment of the required fee was still outstanding, that payment must be made by close of business 26 September 2022, or the matter may be dismissed.

To date there has been no response from Ms Wylie, the required fee has not been paid and a completed waiver form has not been received.

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.

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.

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 shortly.

COMMISSIONER

[1] PR746297.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Angela Wylie lodged an application with the Fair Work Commission (FWC) for a remedy for unfair dismissal under the Fair Work Act 2009. Lucent Advisory Pty Ltd opposed the application. The Commission dismissed the application under s.587(1)(a) of the FW Act as Ms Wylie had not paid the required fee or filed a completed waiver form as stipulated by s.395 of the FW Act. The Commission's decision followed several attempts to contact Ms Wylie and request payment of the required fee. Ultimately, no response was received from Ms Wylie and the required fee was not paid. The Commission found 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. The Commission found that the application was dismissed pursuant to s.587(1)(a) of the FW Act.

The key legal issue the Commission was required to decide was whether Ms Wylie's application was made in accordance with the FW Act. The Commission found that it was not, as the application was not accompanied by the fee prescribed by the FW Act. The Commission also found that the application had no reasonable prospect of success and was not frivolous or vexatious. The Commission was satisfied that the application was dismissed pursuant to s.587(1)(a) of the FW Act.

The Commission considered the relevant provisions of the FW Act and the circumstances of the matter in making its decision. The Commission found that the application was not accompanied by the fee prescribed by the FW Act and that Ms Wylie had been given multiple opportunities to pay the fee or file a completed waiver form. The Commission found that the application was dismissed pursuant to s.587(1)(a) of the FW Act as it was not made in accordance with the FW Act. An order to this effect will be issued shortly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established