Belinda-Lee Simmonds v Sunbather Pty Ltd

[2019] FWC 359

[2019] FWC 359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda-Lee Simmonds
v
Sunbather Pty Ltd
(U2018/12719)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 10 December 2018, Mrs Belinda-Lee Simmonds made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mrs Simmonds did not pay the required fee.

[3] On 11 December 2018, the Commission attempted to telephone Mrs Simmonds in relation to the payment of the required fee. This was unsuccessful and there was no opportunity to leave a voicemail message. Email correspondence was subsequently sent to Mrs Simmonds’ nominated email address advising that if she did not pay the application fee or make an application to have the fee waived within 14 days, her application may be dismissed.

[4] On 18 December 2018 and 8 January 2019, further attempts to telephone Mrs Simmonds were made by the Commission in relation to the payment of the required fee. On the first occasion, Mrs Simmonds could not be contacted and no voicemail message was able to be left. On the second occasion, a voicemail message was left requesting a return call. Following the attempt to contact Mrs Simmonds on 8 January 2019, a further email was sent to her confirming payment of the application fee had not been made and an application for fee waiver had not been received. Mrs Simmonds was advised if she did not pay the application fee or make an application to have the fee waived within seven days, her application may be dismissed.

[5] On 15 January 2019, a final attempt was made to telephone Mrs Simmonds and a voicemail message was left seeking her return call.

[6] To date, Mrs Simmonds has not responded to the Commission’s correspondence.

[7] Section 395 of the 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.”

[8] Section 587(1) 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

(c) the application has no reasonable prospects of success.”

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, Mrs Simmonds’ application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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