Jocelyn Whitmore v IGA Byford

[2016] FWC 8868

[2016] FWC 8868

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jocelyn Whitmore
v
IGA Byford
(U2016/13668)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 9 DECEMBER 2016

Application for relief from unfair dismissal – incomplete application – application dismissed.

[1] On 14 November 2016, Ms Jocelyn Whitmore made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The F2 unfair dismissal application form (the Application) filed by Ms Whitmore was not accompanied by payment of the filing fee or a waiver of application fee form.

[3] On 16 November 2016, Ms Whitmore was advised by telephone and email that her Application required payment of the filing fee or a completed waiver of application fee form if she wished to proceed.

[4] On 30 November 2016, the Fair Work Commission (the Commission) attempted to contact Ms Whitmore in relation to the correspondence dated 16 November 2016. A voicemail message was left for Ms Whitmore to advise that no payment or waiver of application fee form had been received by the Commission and to contact the Commission as soon as possible if she wished to proceed with her Application.

[5] On 6 December 2016, the Commission made a further attempt to contact Ms Whitmore and left another voicemail message advising her to make contact by close of business 6 December 2016 or her Application would be recommended to be closed.

[6] No response was received from Ms Whitmore and payment of the required fee, or filing of a complete waiver of application fee form, has not been made.

[7] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[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

(c) the application has no reasonable prospects of success.”

[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 or a completed waiver of fee application form, 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 (PR588403) to this effect will be issued.

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<Price code A, PR588402>