Brooke Faulkner v Nixon Safety Pty Ltd T/A Firequest

[2017] FWC 2649

[2017] FWC 2649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brooke Faulkner
v
Nixon Safety Pty Ltd T/A Firequest
(U2017/3483)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 MAY 2017

Application for an unfair dismissal remedy.

[1] On 30 March 2017, Ms Brooke Faulkner made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act). The application was filed by Unfair Dismissals Direct on behalf of Ms Faulkner. The covering email requested Ms Faulkner be contacted directly to make payment of the application fee.

[2] On 31 March 2017, the Fair Work Commission attempted to contact Ms Faulkner by telephone in relation to the required fee. A voicemail was left seeking a return call. On the same day, correspondence was sent to Ms Faulkner advising that payment of the lodgement fee or a completed fee waiver form was required if she wished to proceed with her application. Ms Faulkner was advised in the absence of any advice from her within 14 days, her application may be dismissed.

[3] On 4 April 2017, Ms Faulkner telephoned the Commission and advised she had been told by her representative that the filing fee would be paid on lodgement by Unfair Dismissals Direct. Ms Faulkner was advised of the content of the covering email to her application and that an application for fee waiver could be provided to her, which was subsequently sent to her. In the correspondence of the same date, Ms Faulkner was advised in the absence of any advice from her within 14 days, her application may be dismissed.

[4] On 6 April 2017, a message was left for Ms Faulkner to telephone the Commission regarding the unpaid application fee. On 18 April 2017, a further message was left regarding the outstanding application fee and advice was given that the file would be referred for closure if there was no contact from Ms Faulkner by the end of that week.

[5] On 20 April 2017, an attempt was made to contact Ms Faulkner’s representative regarding the unpaid application fee and a message was left for Ms Becca Williamson to return the Commission’s call.

[6] No response has been received from Ms Faulkner or her representative and payment of the required fee has not been made.

[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, the 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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