Jessica May Upton v Keegan Mcglashan, Holder Name: Dbi20 Pty Limited

[2022] FWC 2357

[2022] FWC 2357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jessica May Upton
v
Keegan Mcglashan, Holder Name: Dbi20 Pty Limited

(U2022/8420)

cOMMISSIONER bISSETT MELBOURNE, 12 SEPTEMBER 2022

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

1. On 16 August 2022, Ms Jessica May Upton (the Applicant) 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).

1. The application was incomplete in that the Applicant did not pay the required fee or file a completed waiver form.

1. On 17 August 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment of the required fee and confirm the date the Applicant commenced employment. However, the Applicant did not answer the call. A voicemail message was unable to be left as the phone was switched off.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that her application was incomplete, and she needed to confirm the date she commenced employment. The correspondence also reminded the Applicant that she was required to provide 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. 

1. An attempt to contact the Applicant was made by the Commission on 30 August 2022 by telephone to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was unable to be left as the phone was switched off.

1. A further attempt to contact the Applicant was made by the Commission on 1 September 2022 by telephone. That call was also not answered, and a voicemail message was again unable to be left as the phone was switched off.

1. On 2 September 2022, the Applicant’s matter was allocated to my Chambers.

1. On 5 September 2022, my Chambers emailed correspondence to the Applicant’s nominated email address advising that as the Commission has not received payment of the filing fee or a completed waiver form the Applicant. The Applicant was advised that if she failed to do so by 9 September 2022 her application will be dismissed without further correspondence.

1. To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

1. 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.

1. 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 prospects of success.

1. 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[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR745508

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<PR745507>