Julie Margaret Potter v Steven Withers

[2025] FWC 6

[2025] FWC 6

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Julie Margaret Potter
v

Steven Withers

(U2024/13981)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 JANUARY 2025

Application for an unfair dismissal remedy

1. Ms Julie Margaret Potter lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 21 November 2024.

1. The application was incomplete in that Ms Potter did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80).

1. On 27 November 2024, at 11:26am, the Commission attempted to contact Ms Potter on her nominated telephone number. The call was not answered, and a voicemail message was left advising Ms Potter that that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application. The Commission also notified Ms Potter that the Commission would be posting correspondence to her nominated postal address, as she had not nominated an email address. Later that day the Commission posted the aforementioned correspondence to Ms Potter’s nominated postal address advising her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application. That correspondence also warned that, if payment was not made, or a Form F80 was not received within 14 days, her application may be dismissed. An SMS notification was also sent to Ms Potter’s nominated telephone number requesting that she contact the Commission. At 2:46pm, Ms Potter returned the Commission’s call, Ms Potter confirmed that she did not have an email address and requested that Form F80 be sent to her postal address. Ms Potter was advised that she would receive correspondence via express post and that she would need to pay the application fee or provide a completed Form F80 within 14 days. Ms Potter indicated that she would likely file the Form F80 in person, at the Commission.

1. On 10 December 2024 the Commission contacted Ms Potter on her nominated telephone number. Ms Potter advised that she was uncertain if she wished to continue with her application. The Commission advised Ms Potter that if payment of the application fee or a Form F80 was not received by 11 December 2024, her application would likely be dismissed.

1. To date the required fee has not been paid and a completed Form F80 has not been received.

1. Section 395 of the 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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

1. Section 587 of the Act relevantly provides as follows:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

1. The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Ms Potter has not lodged a completed Form F80. I am satisfied that the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission, and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR782933.

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