Elizabeth Hilda McRae v Serco Australia Pty Limited

[2022] FWC 29

[2022] FWC 29

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elizabeth Hilda McRae
v

Serco Australia Pty Limited

(U2021/11628)

COMMISSIONER BISSETT MELBOURNE, 11 JANUARY 2022

Application for an unfair dismissal remedy

1. On 14 December 2021 Ms Elizabeth Hilda McRae 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). Ms McRae alleged she was unfairly dismissed by Serco Australia Pty Limited (the Respondent) on 25 November 2021.

1. The application was incomplete in that Ms McRae did not pay the required fee or file a completed waiver form. Ms McRae had also failed to answer all questions on the application form.

1. On 16 December 2021 the Commission contacted Ms McRae on her nominated telephone number to discuss the incomplete application and payment of the required fee. The Commission advised Ms McRae that the application was incomplete and no fee payment or completed waiver form had been received. Ms McRae advised she would provide the missing details and a completed waiver form.

1. Later that day, the Commission emailed correspondence to Ms McRae’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 with the application. That correspondence also warned that if a completed application was not received, payment was not made or a completed fee waiver received within 14 days, the application may be dismissed.

1. Later that day, Ms McRae provided her response by email as to what remedy she was seeking by lodging the application. A completed waiver form was not received.

1. A final attempt to contact Ms McRae was made by the Commission on 30 December 2021 to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising Ms McRae that payment of the required fee or a completed waiver form was still outstanding.

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

[1] PR737368.

Printed by authority of the Commonwealth Government Printer

<PR737367>