Elizabeth Smith v Vaucluse Agriculture

[2022] FWC 751

[2022] FWC 751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Elizabeth Smith
v
Vaucluse Agriculture

(U2022/2075)

cOMMISSIONER bISSETT melbourne, 6 april 2022

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

1. On 17 February 2022, Ms Elizabeth Smith (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).

1. The application was incomplete in that it did not include payment of the required fee or a completed fee waiver form.

1. On 18 February 2022, 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 she contact the Commission to make payment.

1. 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. 

1. A final attempt to contact the Applicant was made by the Commission on 16 March 2022 to obtain payment or a completed fee waiver form. The call was not answered and a voicemail message was left advising that payment of the required fee was still outstanding and the matter was now at risk of being dismissed..

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

1. 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.

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 prospects 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 shortly.

COMMISSIONER

[1] PR740065

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