DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Preece
v
Tynan Motors Pty Ltd
(U2019/12587)

DEPUTY PRESIDENT DEAN

SYDNEY, 24 DECEMBER 2019

Application for an unfair dismissal remedy – fee not paid – application dismissed.

[1] On 12 November 2019, Ms Jacqueline Preece made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Preece did not pay the required fee.

[3] Section 395, 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

[4] On 13 November 2019, Ms Preece was advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[5] On 13 December 2019, Ms Preece contacted the Commission by telephone to request a further copy of the waiver form to be emailed to her to complete. The waiver form was emailed to her the same day.

[6] On 24 December 2019, the Commission made a further attempt to contact Ms Preece without success. A voicemail message was left advising Ms Preece that she must contact the Commission on an urgent basis or her application may be dismissed.

[7] No response was received from Ms Preece and she did not make the payment of the required fee or send a completed waiver application.

[8] 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

[9] 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, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order dismissing the application will be separately issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Jacqueline Preece against Tynan Motors Pty Ltd arose from a dispute over an unfair dismissal claim. Ms. Preece, an employee of Tynan Motors, sought remedy for her dismissal, alleging it was unfair. The case was heard in the Fair Work Commission of Australia. The central issue before the court was whether Ms. Preece had complied with the procedural requirements necessary to pursue her unfair dismissal claim, specifically whether she had paid the applicable application fee in a timely manner.

The court had to determine if the failure to pay the application fee constituted a valid reason for dismissing the application. It was necessary to examine the timeliness and method of payment, as well as the implications of section 541 of the Fair Work Act 2009, which outlines the requirements for making an application for unfair dismissal remedy. The court considered whether there were any grounds for waiving the fee requirement under the Act.

In its reasoning, the court found that Ms. Preece had not complied with the requirement to pay the application fee, and there were no exceptional circumstances that would warrant a waiver of this requirement. The court emphasised the importance of adhering to procedural prerequisites and noted that failure to do so could lead to the dismissal of the application. Consequently, the court dismissed Ms. Preece's application for unfair dismissal remedy due to the non-payment of the application fee.

Jacqueline Preece v Tynan Motors Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established