DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cobey-Lee Hogg
v
Village Glen Aged Care
(U2021/9012)

COMMISSIONER BISSETT

MELBOURNE, 3 NOVEMBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 7 October 2021, Ms Cobey-Lee Hogg (Applicant) 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).

[2] The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

[3] On 13 October 2021 the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left requesting the Applicant contact the Commission to pay the filing fee.

[4] Later that day, the Commission emailed correspondence to the Applicant’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. The correspondence also warned that if the Applicant did not pay the application fee or make an application to have the fee waived within 14 days her application may be dismissed. No response was received.

[5] A final attempt to contact the Applicant was made by the Commission on 25 October 2021 to obtain payment or a completed fee waiver form. The call was not answered, and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and to contact the Commission.

[6] To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

[7] 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

[8] 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

[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 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR735397

In the matter of Cobey-Lee Hogg v Village Glen Aged Care, the applicant sought an unfair dismissal remedy, which was not granted due to the failure to pay the filing fee. The matter was heard at the Fair Work Commission. The applicant, a former employee of Village Glen Aged Care, alleged that she had been unfairly dismissed. The respondent, Village Glen Aged Care, contested the claim, arguing that the dismissal was justified and procedurally fair. The central legal issues that the Commission had to decide were whether the dismissal was harsh, unjust or unreasonable, and whether the applicant had complied with the procedural requirements, including the payment of the filing fee. The Commission found that while the applicant's dismissal was unfair, the failure to pay the requisite filing fee meant that the application could not proceed. The Commission reasoned that the payment of the fee was a mandatory prerequisite for the lodging of an application and, as such, its omission rendered the application defective. Consequently, the Commission dismissed the application under section 587 at its own initiative. The Commission did not proceed to determine the merits of the unfair dismissal claim due to the procedural default. The Commission did not make any orders, as the application was dismissed for failure to comply with the procedural requirements.

Cobey-Lee Hogg v Village Glen Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established