Emily Waples v Rhubarb Emporium

[2014] FWC 1867

[2014] FWC 1867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emily Waples
v
Rhubarb Emporium
(U2014/4401)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 MARCH 2014

Application for relief from unfair dismissal.

[1] On 6 February 2014, Miss Emily Waples made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Waples did not pay the required fee.

[3] On 10 February 2014, Miss Waples was advised by telephone and email correspondence that her application required payment of the ($65.50) filing fee or a completed waiver form if she wished to proceed with her application.

[4] Section 395, which deals with application fees, provides:

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.

[5] On 20 February 2014, the Fair Work Commission (the Commission) contacted Miss Waples in relation to the correspondence dated 10 February 2014. Miss Waples stated she had returned the waiver form by email to the Sydney Commission Registry on 10 February 2014. An extensive search was conducted by the Registry to locate the form but it has not been found.

[6] On 21 February 2014, Miss Waples was again contacted by telephone and requested to send the waiver directly to the staff member who had carriage of the file.

[7] On 25 February 2014, Miss Waples was forwarded email correspondence requesting she forward the waiver application form or make payment within 7 days of the date of the letter. No response was received from Miss Waples and payment of the required fee has not been made.

[8] Section 587(1) of the 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 prospects of success.

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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