Cobie Maddox v Coles Supermarkets

[2022] FWC 382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Cobie Maddox

Coles Supermarkets

(U2022/1362)

cOMMISSIONER bISSETT

MELBOURNE, 24 FEBRUARY 2022

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

On 1 February 2022, Ms Cobie Maddox (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).

The Form F2 – Unfair Dismissal Application (Form F2) filed by the Applicant did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

On 2 February 2022, the Commission attempted to contact the Applicant on her nominated telephone numbers to discuss payment of the required fee however the Applicant did not answer the call. Voicemail messages were left requesting she contact the Commission to make payment.

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. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

The Applicant subsequently wrote to the Commission advising she is unable to pay the filing fee. The Commission then attempted to telephone the Applicant on her nominated telephone numbers to discuss her inability to pay the required fee however there was no answer. Voicemail messages were left requesting she contact the Commission.

A final attempt to contact the Applicant was made by the Commission on 14 February 2022. The Applicant answered the call and advised that she was unable to take the call as she was at work. The Applicant advised that she would telephone the Commission later to make payment.

To date the Applicant has not paid the required fee and a completed waiver form has not been received.

Section 395 of the 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 prospects of success.

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

[1] PR738658

Printed by authority of the Commonwealth Government Printer

Ms Cobie Maddox filed an application to the Fair Work Commission for a remedy for unfair dismissal against Coles Supermarkets. The application was dismissed as it did not include the required fee or a completed fee waiver form as mandated by section 395 of the Fair Work Act 2009. The Commission attempted to contact Ms Maddox to discuss payment of the fee, but she did not respond to calls or voicemails. The Commission also sent an email advising that the application may be dismissed if the fee was not paid within 14 days, but Ms Maddox later wrote to the Commission stating she was unable to pay the fee. Despite further attempts to contact her, no payment was made, and the application was dismissed under section 587(1)(a) of the Act for not being made in accordance with the Act.

The legal issue before the Commission was whether the application complied with the requirements of section 395 of the Fair Work Act. Section 395(1) stipulates that an application to the Fair Work Commission must be accompanied by any prescribed fee, with section 395(2) allowing for the fee to be waived under certain circumstances. The Commission found that the application was not accompanied by the required fee, and there was no evidence of a completed waiver form. The Commission also considered whether the application was frivolous or vexatious, or had no reasonable prospects of success, but found that the primary issue was the non-compliance with the fee requirements.

The Commission concluded that the application did not comply with the requirements of section 395, as it was not accompanied by the required fee or a completed waiver form. The dismissal was pursuant to section 587(1)(a) of the Act, which allows for the dismissal of an application if it is not made in accordance with the Act. The Commission found that the application was not made in accordance with the Act due to the absence of the required fee, and therefore dismissed the application.

An Order will be issued to this effect.

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