Jacquline Comerford v Mount View Constructions Pty Ltd

[2018] FWC 6630

[2018] FWC 6630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacquline Comerford
v
Mount View Constructions Pty Ltd
(U2018/9113)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 5 September 2018, Ms Jacquline Comerford made an application by telephone to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 6 September 2018, the Commission sent correspondence to Ms Comerford’s nominated email and postal addresses to confirm that she had made an application with the Commission, by telephone, on 5 September 2018. The correspondence advised that pursuant to Rule 9 of the Fair Work Commission Rules 2013, her application could not proceed until she paid the required fee and returned the signed, completed application. At the time of making her application, Ms Comerford had indicated that she would apply for a fee waiver. Accordingly, the Commission attached to the correspondence a blank fee waiver application form and her incomplete Form F2 – Unfair dismissal application, and requested that she complete and return the documents within 14 days of receiving the correspondence. The correspondence further advised that if Ms Comerford failed to respond within 14 days, her application may be dismissed.

[3] On 3 October 2018, the Commission attempted to contact Ms Comerford by telephone in relation to her application and fee waiver, however this was unsuccessful and a voicemail message was left requesting her return call. Following this, further correspondence was emailed to Ms Comerford’s nominated email address, again advising that her application could not proceed until she paid the required fee and returned her signed, completed application to the Commission. It was noted that in the absence of any advice from Ms Comerford within 14 days after receipt of the correspondence, her application may be dismissed.

[4] On 10 October 2018, a final attempt to telephone Ms Comerford was made by the Commission. This was again unsuccessful and a voicemail message was left requesting her return call. Final email correspondence was then sent to Ms Comerford seeking that she send her completed application and pay the application fee to the Commission within 14 days of receiving the letter.

[5] To date, no response from Ms Comerford has been received.

[6] 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.”

[7] 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.”

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the Act as Ms Comerford has failed to file a completed application and did not pay the required fee. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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