Caterina Kuradczyk v The Portsea Camp

[2023] FWC 222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Caterina Kuradczyk
v

The Portsea Camp

(U2023/111)

COMMISSIONER BISSETT

MELBOURNE, 27 JANUARY 2023

Application for an unfair dismissal remedy

On 4 January 2023 Ms Caterina Kuradczyk 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).

The application was incomplete in that Ms Kuradczyk did not pay the required fee or file a completed waiver form.

On 8 January 2023 the Commission emailed correspondence to Ms Kuradczyk’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 7 calendar days the application may be dismissed.

On 11 January 2023 the Commission emailed correspondence to Ms Kuradczyk’s nominated email address reminding that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received, the application may be dismissed.

A final attempt to contact Ms Kuradczyk on her nominated telephone number was made by the Commission on 19 January 2023 to obtain payment or a completed waiver form. A voicemail message was left advising Ms Kuradczyk that payment of the required fee was still outstanding.

To date there has been no response from Ms Kuradczyk, the required fee has not been paid and a completed waiver form has not been received.

Section 395 of the FW Act, which deals with application fees, provides as follows:

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.

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.

I am satisfied that, as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

Caterina Kuradczyk filed an application for unfair dismissal against The Portsea Camp with the Fair Work Commission under section 394 of the Fair Work Act 2009. The application was incomplete as Kuradczyk did not pay the required fee or file a completed waiver form. The Commission sent multiple correspondences to Kuradczyk, warning that the application would be dismissed if the fee or waiver form was not submitted within the specified period. Despite these communications, Kuradczyk did not respond, leading to the dismissal of her application under section 587(1)(a) of the FW Act.

The primary legal issue before the Commission was whether the application could proceed despite not being accompanied by the required fee, as prescribed by section 395 of the FW Act. The Commission considered whether the failure to meet this requirement justified the dismissal of the application under section 587(1)(a) of the FW Act. Commissioner Bissett found that Kuradczyk's failure to submit the fee or waiver form meant the application was not made in accordance with the Act, leading to its dismissal.

Commissioner Bissett examined the statutory requirements under sections 395 and 587 of the FW Act and determined that Kuradczyk's application was incomplete and thus not compliant with the Act. The Commission's repeated attempts to contact Kuradczyk and advise her of the necessity to pay the fee or submit a waiver form further supported the conclusion that the application did not meet the procedural requirements. Consequently, the application was dismissed, as it lacked the necessary fee and waiver form as stipulated by the Act.

The Fair Work Commission ordered that Caterina Kuradczyk's application for unfair dismissal against The Portsea Camp be dismissed. The dismissal was based on the application's failure to comply with the requirements of the Fair Work Act 2009, specifically the non-payment of the required fee and the absence of a completed waiver form.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established