Ayea Miah v G.J. & K. Cleaning Services Pty. Limited

[2022] FWC 2994

[2022] FWC 2994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ayea Miah
v

G.J. & K. Cleaning Services Pty. Limited

(U2022/10114)

COMMISSIONER BISSETT MELBOURNE, 11 NOVEMBER 2022

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

1. On 17 October 2022 Ms Ayea Miah 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 Miah did not pay the required fee or file a completed waiver form.

1. On 19 October 2022 the Commission emailed correspondence to Ms Miah’s nominated payer, Ms Rosa Fernandes, via the provided email address advising that the application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 7 calendar days, the application may be dismissed. An SMS notification was also sent to Ms Miah’s nominated telephone number and to Ms Abbey Sultan - Ms Miah’s representative - advising to action the payment request email from the Fair Work Commission to pay the application fee.

1. Later that day, the Commission received an email from Ms Sultan, advising that the parties had reached an agreement and requested that no further action be taken on this matter until close of business 26 October 2022.

1. On 24 October 2022, the Commission emailed correspondence to Ms Fernandes’s nominated email address reminding that the application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received, the application may be dismissed. 

1. On 27 October 2022, Ms Sultan was contacted by the Commission on her nominated telephone number to confirm whether she wished to continue with the application. The call was not answered, and a voicemail message was left advising Ms Sultan that payment of the required fee was still outstanding and to inform the Commission if she did not want to proceed with the application.

1. A final attempt to contact Ms Fernandes on her nominated telephone number was made by the Commission on 28 October 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was unable to be left.

1. To date there has been no further response from Ms Miah, Ms Sultan or Ms Fernandes, the required fee has not been paid and a completed waiver form has not been received.

1. 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.

1. 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.

1. 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

[1] PR747836

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