Ishara Pollmeier v Woolworths Group Limited

[2022] FWC 1254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ishara Pollmeier
v

Woolworths Group Limited

(U2022/4934)

COMMISSIONER O’NEILL

MELBOURNE, 23 MAY 2022

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

On 1 May 2022, Ms Ishara Pollmeier 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 Pollmeier did not pay the required fee or file a completed waiver form.

On 3 May 2022, the Commission attempted to contact Ms Pollmeier on her nominated telephone number to discuss payment of the required fee however, she did not answer the call. A voicemail message was left requesting she return the phone call to complete payment of the required fee.

Later that day, the Commission emailed correspondence to Ms Pollmeier’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 the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Pollmeier’s nominated telephone number, advising that there was a problem with her application and requesting she contact the Commission.

A final attempt to contact Ms Pollmeier was made by the Commission on 16 May 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising her that payment of the required fee was still outstanding.

To date there has been no response from Ms Pollmeier, 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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Ishara Pollmeier applied to the Fair Work Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Woolworths Group Limited was the respondent in this matter. Ms Pollmeier’s application was incomplete as it did not include the required fee or a completed waiver form. Despite attempts to contact Ms Pollmeier to rectify the omission, no action was taken to complete the application. The Commission dismissed the application under section 587 of the Fair Work Act, finding that it was not made in accordance with the Act.

The central legal issue in this case was whether the Fair Work Commission had the authority to dismiss an application for unfair dismissal that was not accompanied by the required fee. Section 395 of the Fair Work Act mandates that an application to the Commission must be accompanied by a prescribed fee, with the possibility of a waiver under certain circumstances. Section 587 of the Act allows the Commission to dismiss an application if it is not made in accordance with the Act. Given that Ms Pollmeier’s application was incomplete due to the lack of the required fee, the Commission held that the application did not comply with the Act and was dismissible under section 587(1)(a).

The Commissioner found that the application did not comply with section 395 of the Fair Work Act as it was not accompanied by the prescribed fee. Despite multiple attempts to contact Ms Pollmeier to resolve the issue, no action was taken. Consequently, the Commissioner concluded that the application was not made in accordance with the Act and dismissed it under section 587(1)(a). An order dismissing the application will be issued.

This case underscores the importance of following procedural requirements when making an application to the Fair Work Commission. Failure to comply with such requirements may result in the dismissal of the application, regardless of the merits of the underlying claim.

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