Dalyn Stockdale v Stephen Gillespie Infinite Care

[2023] FWC 1458

[2023] FWC 1458

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dalyn Stockdale
v

Stephen Gillespie Infinite Care

(U2023/4243)

COMMISSIONER BISSETT MELBOURNE, 20 JUNE 2023

Application for an unfair dismissal remedy

1. On 16 May 2023 Ms Dalyn Stockdale 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 Stockdale did not pay the required fee or file a completed waiver form.

1. On 22 May 2023 the Commission emailed correspondence to Ms Stockdale’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 not received within 7 calendar days the application may be dismissed. An SMS notification was also sent to Ms Stockdale’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

1. On 30 May 2023 the Commission emailed correspondence to Ms Stockdale’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.

1. A final attempt to contact Ms Stockdale on her nominated telephone number was made by the Commission on 31 May 2023 to obtain payment or a completed waiver form. The call went unanswered and there were no voicemail facility.

1. The applicant’s mother contacted the Commission’s helpline on the 13 June 2023, querying if Ms Stockdale could pay the lodgement fee when she is paid next week. The Commission advised Ms Stockdale of the time frame to pay the lodgement fee and provided information about the waiver form.

1. To date there has been no response from Ms Stockdale, 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 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. 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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