Elise Barron v Gails Cutting Lounge

[2024] FWC 1186

[2024] FWC 1186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Elise Barron
v

Gails Cutting Lounge

(U2024/2102)

COMMISSIONER JOHNS MELBOURNE, 8 MAY 2024

Application for an unfair dismissal remedy

1. On 26 February 2024, Elise Barron (Applicant) made an application to the Fair Work Commission (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 the Applicant did not pay the required fee or file a completed waiver form.

1. On 27 February 2024, the Commission emailed correspondence to the Applicant’s nominated email address advising that their application was incomplete and required payment of the filing fee or a completed waiver form. The email further stated as follows:

   ‘If we don’t receive your completed application by Tuesday 12 March 2024, your case is very likely to be dismissed.’

1. On 12 March 2024, the Commission tried to contact the Applicant on their nominated telephone number to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left requesting the Applicant to contact the Commission.

1. On 25 March 2024, the Applicant sent email correspondence to the Commission requesting a status update on their application.

1. On 25 March 2024, the Commission emailed correspondence to the Applicant’s nominated email address with a reminder that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. The correspondence instructed the Applicant on how to pay the application fee or make a waiver application and further stated as follows:

‘Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.’

1. A final attempt to contact the Applicant on their nominated telephone number was made by the Commission on 27 March 2024, to obtain payment or a completed 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. The call also advised the Applicant that the case may be dismissed if the payment has not been received before the close of business on Monday 2 April 2024.

1. On 27 March 2024 the Commission received a call from the Applicant. The Commission requested a secure email address for the respondent and notified the Applicant that payment was still outstanding for their matter. The Applicant stated that they would provide a completed waiver form and the respondent’s email address. To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

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 and I do so order [PR774603].

COMMISSIONER
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<PR774602>