Brandi Higgs v The Trustee for Cleopatra’s Temple Business Trust

[2024] FWC 736

[2024] FWC 736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Brandi Higgs
v

The Trustee for Cleopatra’s Temple Business Trust

(U2024/1792)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MARCH 2024

Application for relief from unfair dismissal.

1. On 19 February 2024, Ms Brandi Higgs 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 Higgs did not pay the required application fee, nor did he lodge a complete Form F80 – Application for waiver of the application fee (Form F80). The Form F80 provided was blank.

1. The Applicant advised in her Form F2 - Unfair Dismissal Application (Form F2) that she commenced employment with The Trustee for Cleopatra’s Temple Business Trust (the Respondent) between 1- 10 August, she did not provide a year, and that her dismissal took effect on 9 February 2024.

1. On 20 February 2024, the Commission attempted to contact Ms Higgs on her nominated telephone number to advise Ms Higgs that the Form F80 she provided was not complete and the required fee was still outstanding. Ms Higgs could not be reached, and a voicemail message was left requesting that she refer to the emails which would be sent from the Commission and to follow their instructions and call the Commission if she required any clarification. Later that day the Commission emailed 2 pieces of correspondence to Ms Higgs’s nominated email address. The first email advised Ms Higgs that her application required payment of the application fee or a completed Form F80 if she wished to proceed with the application, and that, on the basis of the information provided in her Form F2, she had not served the minimum employment period. The correspondence directed Ms Higgs to file any documents or other evidence to support her claim that she had served the required minimum employment period. That correspondence also warned that if she did not contact the Commission within 14 days her application may be dismissed without further notice. The second email also advised Ms Higgs that her application may not be valid as it appeared that the Respondent was not a National System Employer, and again warned Ms Higgs that if she did not contact the Commission within 14 days her application may be dismissed without further notice. An SMS notification was also sent to Ms Higgs’s nominated telephone number advising her that there was a problem with her application and requesting that she contact the Commission.

1. A final attempt to contact Ms Higgs was made by the Commission on 5 March 2024. The call was not answered, and a voicemail message was left advising Ms Higgs that her application was incomplete and that if she did not contact the Commission by close of business that day, her application would likely be dismissed, and a result published on the Commission website. To date Ms Higgs has not paid the required application fee or completed a Form F80.

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587(1) of the FW Act provides as follows:

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.

1. 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. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact her and the reminders, Ms Higgs has not responded. Furthermore, Ms Higgs has not responded to either the Commissions queries regarding her service of the minimum employment period or the Respondent’s status as a National Systems Employer. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

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

[2] PR772603.

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