Hayley Fuller v Little Mussel Cafe T/A Advance Mussel Supply

[2020] FWC 1798

[2020] FWC 1798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Fuller
v
Little Mussel Cafe T/A Advance Mussel Supply
(U2020/1656)

COMMISSIONER BISSETT MELBOURNE, 6 APRIL 2020

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

[1] On 17 February 2020, Ms Hayley Fuller made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The application form filed by Ms Fuller was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] On 17 February 2020, the Commission contacted Ms Fuller and informed that payment of the filing fee or a completed waiver form was required if she wished to proceed with her application. Ms Fuller advised she would complete the fee waiver form and send it to the Commission.

[4] On the same date, correspondence was sent to Ms Fuller’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 her application. The correspondence also warned that if Ms Fuller did not pay the application fee or make an application to have the fee waived within 14 days her application may be dismissed.

[5] As no response was received, on 4 March 2020 the Commission attempted to telephone Ms Fuller on her nominated telephone number to discuss payment. Ms Fuller did not answer the call and a voicemail message was left requesting a return call.

[6] On 17 March 2020 the Commission again attempted to telephone Ms Fuller on her nominated telephone number. Ms Fuller did not answer the call. A voicemail message left advising Ms Fuller that her application may be dismissed if payment was not made or a fee waiver was not received.

[7] To date, no response has been received from Ms Fuller. Payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[8] Section 395 of the FW Act, which deals with application fees, states that:

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.

[9] 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.

[10] 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

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