Calysta Munn v The Australian Opal & Diamond Collection Pty Ltd

[2024] FWC 1459

[2024] FWC 1459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Calysta Munn
v

The Australian Opal & Diamond Collection Pty Ltd

(U2024/3745)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 5 JUNE 2024

Application for an unfair dismissal remedy

1. On 2 April 2024, Ms Calysta Munn made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. The application was incomplete in that Ms Munn did not pay the required fee nor lodge a completed Form F80 – Application for waiver of the application fee (Form F80).

1. On 8 April 2024, the Commission emailed correspondence to Ms Munn’s nominated email address advising her that payment of the application fee or a completed Form F80 was required if she wished to proceed with his application. That correspondence also warned that if payment was not made or a completed Form F80 was not received within 7 calendar days the application may be dismissed.

1. On 22 April 2024, the Commission emailed correspondence to Ms Munn’s nominated email address reminding her that payment of the application fee or a completed Form F80 was required if she wished to proceed with the application. That correspondence also warned that if payment is not made or a Form F80 was not received, the application may be dismissed. 

1. A final attempt to contact Ms Munn on her nominated telephone number was made by the Commission on 7 May 2024 to obtain payment or a completed Form F80. A voicemail message was left advising Ms Munn that payment of the required fee was still. The message advised Ms Munn to make payment by close of business on 7 May 2024 otherwise the matter may be dismissed without further notice.

1. To date there has been no response from Ms Munn, the required fee has not been paid and a completed Form F80 has not been received.

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 prospect 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, or receipt of a completed Form F80, 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 reminders and multiple requests, Ms Munn has not paid the application fee, nor provided a completed Form F80. 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] PR775670.

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