Celeste Harmer v P & J Mead Pty Limited Trading Trust

[2022] FWC 1149

[2022] FWC 1149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Celeste Harmer
v

P & J Mead Pty Limited Trading Trust

(U2022/4580)

COMMISSIONER BISSETT MELBOURNE, 13 MAY 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

1. On 20 April 2022 Ms Celeste Harmer 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 Harmer did not provide the legal name of the Employer, did not provide the reasons for dismissal and did not pay the required fee or file a completed waiver form.

1. On 21 April 2022 the Commission contacted Ms Harmer on her nominated telephone number to discuss her incomplete application and payment of the required fee. The Commission advised Ms Harmer that she did not provide the legal name of the Employer, did not provide the reasons for dismissal and did not pay the required fee or file a completed waiver form. Ms Harmer advised that she would call the Commission later to provide payment of the fee.

1. Later that day the Commission emailed correspondence to Ms Harmer’s nominated email address advising that her application was incomplete and required payment of the filing fee or a completed waiver form if she wished to proceed. That correspondence also warned that if she did not provide a completed application and payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

1. On 22 April 2022 Ms Harmer sent a completed application form with the legal name of the Employer and a copy of her termination letter. The Commission did not receive payment of the fee or a completed waiver form.

1. A final attempt to contact Ms Harmer was made by the Commission on 2 May 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Ms Harmer that payment of the required fee was still outstanding.

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

1. 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.

1. Section 587(1) of the FW 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 prospect of success.

1. Having regard to the circumstances of this matter, 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. An order[1] to this effect will be issued with this decision.

COMMISSIONER

<PR741570>

[1] PR741571.

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