Jamila Subedhar v Sydney Water Corporation

[2025] FWC 1648

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Jamila Subedhar
v

Sydney Water Corporation

(U2025/1265)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 JUNE 2025

Application for an unfair dismissal remedy dismissal under s.587– unpaid application fee – s.395 – application is not made in accordance with this Act – second application in relation to the same dismissal – s.725 - application dismissed.

On 5 February 2025, Mrs Jamila Subedhar made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mrs Subedhar’s application raised concerns about the application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) was not paid and has not yet been paid.

Commission staff tried to contact Mrs Subedhar on 7 February, 17 March, 18 March, 20 March, 24 March, 2 April, 3 April, 14 May, 28 May, 30 May, 3 June and 6 June 2025 about these concerns. Mrs Subedhar applied for a waiver of the $87.20 application fee but refused to provide any specific information about her financial position. It is not clear from Ms Subedhar’s application whether she is still in receipt of worker’s compensation weekly benefits.

In the course of pressing Mrs Subedhar to complete her application it became apparent that Mrs Subedhar had also made a claim against the Respondent under NSW anti-discrimination legislation in relation to the same dismissal. Mrs Subedhar said that she wanted that discrimination application “heard first” before progressing with her unfair dismissal claim and presumably paying the application fee, and asked that her unfair dismissal claim be placed “on hold for the time being.”

The Form F2 completed by Mrs Subedhar indicated “I am seeking to pursue an unfair dismissal claim based on discrimination” however the Form F2 also stated that she had not started any other claims in relation to the dismissal.

Mrs Subedhar eventually informed the Commission in correspondence that she had made her application to the NSW Anti-Discrimination Board on 20 January 2025, being five days after her dismissal and two weeks before filing her unfair dismissal application.

On 6 June 2025 my chambers wrote to the Mrs Subedhar to give her the option to discontinue or provide a submission as to how her claim could continue in light of the operation of s.725 of the Fair Work Act 2009.

Mrs Subedhar has chosen not to discontinue her unfair dismissal application.

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.”

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.”

Mrs Subedhar’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 Subedhar application.

Mrs Subedhar has been given ample opportunity to rectify the deficiency in her 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.

Mrs Subedhar’s application was also not made in accordance with the Act because at the time it was lodged Mrs Subedhar was statutorily barred from making by s.725 of the Act (see Ioannou v Northern Belting Services Pty Ltd [2014] FWCFB 6660 at [30]).

I am satisfied that Mrs Subedhar has had the opportunity to put a case for consideration on all matters material to the decision to dismiss the application under s.587. In the circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mrs Subedhar’s application. I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mrs Jamila Subedhar on 5 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was tasked with examining an unfair dismissal claim brought by Mrs Jamila Subedhar against Sydney Water Corporation. The central issue was whether the application was made in accordance with the Fair Work Act 2009. The application was filed on 5 February 2025 but had not been accompanied by the requisite fee as stipulated under s.395 of the Act. Despite multiple attempts by the Commission to contact Mrs Subedhar regarding the unpaid fee, she did not provide specific information about her financial situation nor did she pay the fee. The Commission also discovered that Mrs Subedhar had filed a claim under New South Wales anti-discrimination legislation pertaining to the same dismissal, indicating a potential duplication of proceedings. The Commission was required to determine if Mrs Subedhar's application could proceed in light of these issues.

The primary legal questions were whether the application complied with the requirements of the Fair Work Act and if the Commission had the authority to dismiss the application under s.587 due to the unpaid fee and the existence of another claim. Section 395 of the Act mandates that any application to the Fair Work Commission must be accompanied by a prescribed fee, with provisions for waivers under certain circumstances. Section 587 of the Act provides the Commission with the discretion to dismiss an application if it is not made in accordance with the Act or if there are other specified grounds such as the application being frivolous or vexatious. Furthermore, section 725 of the Act bars an applicant from making a claim if they have already commenced another claim in relation to the same dismissal. Given these provisions, the Commission needed to assess whether Mrs Subedhar's application met the statutory requirements and if dismissing the application would be warranted.

In making the decision, the Deputy President noted that Mrs Subedhar had been given multiple opportunities to rectify the deficiencies in her application, including the failure to pay the prescribed fee and the existence of another ongoing claim. Despite these warnings, Mrs Subedhar did not provide the necessary information or take the required steps to address the issues. The Deputy President found that the application did not comply with the Act due to the unpaid fee and the bar under s.725. The Deputy President concluded that the Commission had the discretion to dismiss the application under s.587 and found that doing so was appropriate in the circumstances. The application was dismissed on 13 June 2025.

The Fair Work Commission dismissed the application made by Mrs Jamila Subedhar on 5 February 2025 under s.394 of the Fair Work Act 2009. The decision noted that the application did not comply with the Act due to the failure to pay the prescribed fee and the existence of another claim in relation to the same dismissal. The Commission found that Mrs Subedhar had been given ample opportunity to address these issues but had not done so. The Deputy President concluded that dismissing the application was appropriate and in accordance with the statutory provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established