Immaculate Wanderi v 11/553/592/765

[2025] FWC 40

[2025] FWC 40

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Immaculate Wanderi
v

11/553/592/765

(U2024/9571)

DEPUTY PRESIDENT BEAUMONT PERTH, 6 JANUARY 2025

Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed under s.587.

1. On 16 August 2024, Mrs Immaculate Wanderi made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow, I am satisfied that Mrs Wanderi’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

1. Section 395 of the Act is in the following terms:

“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.”

1. Mrs Wanderi’s application was incomplete because Mrs Wanderi did not pay the required fee or file a completed request to waive the fee, and she failed to provide confirmation of the Respondent’s details.

1. Commission staff contacted Mrs Wanderi on the following dates:

·   21 August 2024 by telephone, SMS and email;

·   11 September 2024 by telephone;

·   2 October 2024 by email;

·   3 October 2024 by SMS;

·   15 October 2024 by email; and

·   16 October 2024 by email.

1. On 21 August 2024, Mrs Wanderi was advised that she must pay the filing fee or apply for a waiver, and she must confirm the Respondent’s details, if she wished to proceed with the application.  Mrs Wanderi was advised that failure to address these issues within 14 days might result in her application being dismissed.  On 2 October 2024, Mrs Wanderi was also warned that the application could be dismissed if the filing fee was not paid within 7 calendar days.

1. On 9 October 2024, Mrs Wanderi responded by email to advise that she was overseas and was having difficulty making payment.  Commission staff sent an email requesting an overseas phone number that they could ring to obtain payment.

1. To date there has been no further response from Mrs Wanderi, no fee paid, no waiver request received, and no confirmation of the Respondent’s details.

1. Section 587 of the Act includes the following provisions:

“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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.“

1. Mrs Wanderi’s application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mrs Wanderi’s application.

1. Mrs Wanderi has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

1. In the circumstances, I am satisfied that Mrs Wanderi’s application should be dismissed.

1. I have separately made an order dismissing Mrs Wanderi’s application (PR783018).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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