Hayley Kerr v Trend Windows and Doors Pty Ltd

[2019] FWC 1403

[2019] FWC 1403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hayley Kerr
v
Trend Windows and Doors Pty Ltd
(U2018/13477)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 24 December 2018, Ms Hayley Kerr made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Kerr did not pay the required application fee.

[3] On 31 December 2018, the Commission attempted to telephone Ms Kerr on the telephone number nominated in her application to obtain payment of the required fee. This telephone number was incorrect and so Ms Kerr was unable to be reached. Following this, the Commission emailed correspondence to Ms Kerr’s nominated email address advising that if she did not pay the application fee or apply to have the fee waived within 14 days, her application may be dismissed. The correspondence also requested she provide her correct telephone number to the Commission.

[4] As no response was received from Ms Kerr, the Commission emailed further correspondence on 10 January 2019 again advising that if she did not pay the application fee or apply to have the fee waived within 14 days, her application may be dismissed. The correspondence again repeated the Commission’s request for Ms Kerr’s correct telephone number.

[5] On 19 February 2019, the Commission discovered Ms Kerr’s correct telephone number amongst the documents annexed to her Form F2 – Unfair Dismissal Application and attempted to telephone her. Ms Kerr was unable to be reached at this telephone number, so a voicemail message was left seeking her return call.

[6] On 20 February 2019, the Commission made a final attempt to telephone Ms Kerr. Again, she was not able to be contacted and a voicemail message was left advising that as the required application fee remained unpaid, her application would not proceed. The Commission further advised in the voicemail message that if Ms Kerr did not make contact within seven days, the matter was likely to be dismissed.

[7] Also on 20 February 2019, final email correspondence was sent to Ms Kerr advising that the Commission had not received payment of the required application fee and that her application could not proceed until this was paid. The correspondence stated that if Ms Kerr wished to continue with her application, she was required to contact the Commission by no later than 4:00PM on 27 February 2019 to make payment of the required application fee. Further, Ms Kerr was warned that if no payment was made by this time, her matter would be considered based on the material already filed and that this would likely result in a dismissal of her application.

[8] To date, Ms Kerr has not responded to the Commission’s correspondence and the required application fee remains outstanding.

[9] Section 395 of the Act, 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.”

[10] 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.”

[11] The Commission has left two voicemails for Ms Kerr on her correct telephone number and sent correspondence via email to her on three occasions regarding the outstanding application fee. Ms Kerr has been afforded many opportunities to make contact with the Commission to pay the required application fee, however she has failed to do so.

[12] 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, Ms Kerr’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705490>