Emma Bagnato v Dental for Schools Summary

[2022] FWC 2607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Emma Bagnato
v

Dental For Schools

(U2022/9098)

COMMISSIONER BISSETT

MELBOURNE, 28 SEPTEMBER 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587(1)(a) at the Commission’s initiative.

On 8 September 2022 Ms Emma Bagnato 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 Bagnato did not pay the required fee or file a completed waiver form.

On 9 September 2022 the Commission sent a payment request to Ms Bagnato on her nominated email address, advising Ms Bagnato to pay the filing fee within 7 days or their application may be dismissed. An SMS payment request notification was also sent on the same day.

On the 13 September 2022 a payment reminder email was sent to Ms Bagnato on her nominated email address requesting Ms Bagnato make payment urgently, otherwise their application may be dismissed.

A final attempt to contact Ms Bagnato was made by the Commission by telephone on 26 September 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Ms Bagnato that payment of the required fee was still outstanding, that payment must be made by close of business 26 September 2022, or the matter may be dismissed.

To date there has been no response from Ms Bagnato, 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 shortly.

COMMISSIONER

[1] PR746277

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Emma Bagnato applied to the Fair Work Commission (FWC) for a remedy for unfair dismissal, pursuant to section 394 of the Fair Work Act 2009. Bagnato's application was incomplete, lacking the required fee and a completed waiver form. The FWC attempted to contact Bagnato multiple times to request the missing fee and waiver form, but she did not respond. As a result, the FWC dismissed the application under section 587(1)(a) of the FW Act, as it was not made in accordance with the Act.

The legal issues before the court involved whether Bagnato's application complied with the FW Act and whether it could be dismissed for non-compliance. The court needed to determine whether the application was made in accordance with the Act and if it could be dismissed for not including the required fee and waiver form. The court also needed to consider whether the application was frivolous, vexatious, or had no reasonable prospect of success.

The court found that Bagnato's application was not made in accordance with the FW Act because it lacked the required fee and waiver form. Despite multiple attempts to contact Bagnato to request the missing documents, she did not respond, leading to the dismissal of the application. The court concluded that the application was not frivolous or vexatious, but it did not meet the requirements of the FW Act. The court also found that the application did not have a reasonable prospect of success due to the lack of compliance with the Act.

The Fair Work Commission dismissed Emma Bagnato's application for a remedy for unfair dismissal. The dismissal was pursuant to section 587(1)(a) of the Fair Work Act 2009, as the application was not made in accordance with the Act. The court found that the application lacked the required fee and waiver form, and despite multiple attempts to contact Bagnato to request the missing documents, she did not respond. As a result, the application was dismissed. An order to this effect will be issued shortly.

Emma Bagnato v Dental for Schools

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established