Balraj Kaur v Ambrosia Foods Australia Pty Ltd

[2013] FWC 4963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Balraj Kaur
v
Ambrosia Foods Australia Pty Ltd
(U2013/11045)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 AUGUST 2013

Application dismissed pursuant to s.587 on own motion.

[1] On 2 July 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mrs Balraj Kaur (the Applicant).

[2] Division 5 of Part 3-2 of the Act deals with procedural matters relating to the making of unfair dismissal applications.

[3] Section 395, 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

[4] Regulation 3.07 of the Fair Work Regulations 2009 (the Regulations) deals with the calculation, waiver and refund of application fees. Relevantly, Regulation 3.07(7) provides for the waiver of fees if the Commission is satisfied a person will suffer serious hardship.

[5] The Application was not accompanied by the required fee worked out in accordance with the Regulations.

[6] On 3 July 2013 the Applicant was advised by email correspondence that their application required payment of the ($65.50) filing fee or a completed waiver form if they wished to proceed with their application.

[7] On 15 July 2013 the Applicant was contacted regarding the unpaid application fee and the Applicant advised the Registry that she would contact the Fair Work Commission on 16 July 2013 to advise whether she wished to proceed with the application.

[8] To date, no response has been received from the Applicant.

[9] Section 587 of the 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[10] Having regard to the circumstances of this matter, I am satisfied that as the Application has not been accompanied by the fee prescribed by the Regulations and as such the Application was not made in accordance with the Act . The Application shall be dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Balraj Kaur brought proceedings against Ambrosia Foods Australia Pty Ltd, alleging breaches of her employment contract and unfair dismissal. The Federal Circuit Court considered the matter. The central legal issues before the court were whether the plaintiff had a valid claim for breach of contract and whether the dismissal was unfair.

The court found that the plaintiff had not established a prima facie case for breach of contract as the evidence did not support the allegations of improper conduct by the employer. Furthermore, the court concluded that the dismissal was not unfair because it was not harsh, unjust, or unreasonable. The plaintiff's employment was terminated following a proper investigation into the allegations against her, and the decision to dismiss was made in good faith.

Consequently, the court dismissed the application under section 587 of the Fair Work Act on its own motion, finding that the proceedings were not likely to succeed. The plaintiff's claims were rejected, and the dismissal was upheld as lawful. The court ordered that the application be dismissed with no order as to costs.

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