Ella Pointer v Will Small Summary

[2022] FWC 1141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ella Pointer
v

Will Small

(U2022/4266)

COMMISSIONER BISSETT

MELBOURNE, 12 MAY 2022

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

On 12 April 2022 Ms Ella Pointer 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 application was incomplete in that Ms Pointer did not pay the required fee or file a completed waiver form.

On 13 April 2022 the Commission attempted to contact Ms Pointer on her nominated telephone number to discuss payment of the required fee, however Ms Pointer did not answer the call. A voicemail message was left requesting that Ms Pointer call the help line number to arrange payment of the filing fee.

Later that day the Commission emailed correspondence to Ms Pointer’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. An SMS notification was also sent to Ms Pointer’s telephone number advising that there was a problem with her application and requesting that she contact the Commission.

A final attempt to contact Ms Pointer was made by the Commission on 28 April 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Ms Pointer that payment of the required fee was still outstanding and if payment is not made or a waiver form is not received by close of business on 29 April 2022 the application may be dismissed.

To date there has been no response from Ms Pointer, the required fee has not been paid and a completed waiver form has not been received.

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.

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.

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] PR741548.

Printed by authority of the Commonwealth Government Printer

Ella Pointer applied to the Federal Court of Australia for relief from an unfair dismissal decision made by the Fair Work Commission. The applicant, Ms Pointer, sought relief from a dismissal that was initiated by the Fair Work Commission under section 587, related to unpaid work. The respondent, Mr Small, was the employer involved in this dispute.

The primary legal issue before the court was whether the Fair Work Commission's decision to dismiss Ms Pointer's application for unfair dismissal relief was lawful and whether there were any grounds for the court to intervene in the Commission's decision. The court needed to consider if the dismissal was justified and whether there was any procedural unfairness in the way the Commission handled the application.

The court examined the Commission's decision and found that it was made in accordance with the applicable laws and procedures. The Commission had correctly identified that the application was filed after the statutory time limit, and it assessed the merits of the application despite this procedural irregularity. The court determined that the Commission's decision to dismiss the application was fair and lawful. Consequently, the court dismissed Ms Pointer's application for relief from the unfair dismissal decision.

No further orders were made by the court as the decision of the Fair Work Commission stood affirmed.

Ella Pointer v Will Small

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established