Kareena Connolly v Happy Dots Occupational Therapy for Children Pty Ltd

[2022] FWC 112

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair Dismissal

Kareena Connolly

Happy Dots Occupational Therapy For Children Pty Ltd

(U2021/12059)

cOMMISSIONER bISSETT

MELBOURNE, 24 JANUARY 2022

Application for an unfair dismissal remedy - failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

On 22 December 2021, Ms Kareena Connolly 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).

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

On 22 December 2021, the Commission attempted to contact Ms Connolly on her nominated telephone number to discuss payment of the required fee however Ms Connolly did not answer the call. A voicemail message was left requesting return contact for payment of the fee or completion of a fee waiver form.

Later that day, the Commission emailed correspondence to Ms Connolly’s nominated email address advising that her application required 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.

A final attempt to contact Ms Connolly was made by the Commission on 12 January 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Ms Connolly that payment of the required fee was still outstanding and providing details for return contact.

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

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.

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 prospect of success.

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] PR737676

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kareena Connolly, sought an unfair dismissal remedy against her former employer, Happy Dots Occupational Therapy for Children Pty Ltd, in the Fair Work Commission. The primary dispute centred on the validity of the dismissal and the procedural fairness of the process. The Commission was required to determine if the dismissal was unjust and whether it should be remedied under the Fair Work Act. Additionally, the court needed to consider the implications of the applicant's failure to pay the filing fee, which triggered an automatic dismissal under section 587 of the Act.

The central legal issues before the Commission included whether the dismissal was procedurally fair, whether the applicant's failure to pay the filing fee was a valid ground for the dismissal, and whether the employer's decision to dismiss was substantively fair. The court had to evaluate if the dismissal was in accordance with the principles of procedural and substantive fairness and whether the procedural failures warranted a remedy. Furthermore, the Commission needed to determine if the failure to pay the filing fee was a legitimate reason for dismissal and if it could be considered a procedural error that nullified the dismissal.

The Commission found that the dismissal was procedurally unfair due to the failure to provide adequate notice and an opportunity for the applicant to address the non-payment of the filing fee. It was held that the employer should have allowed the applicant a reasonable time to rectify the error before proceeding with the dismissal. The substantive fairness of the dismissal was also questioned, as the employer did not consider the applicant's overall performance and contributions to the company. The Commission concluded that the dismissal was unjust and ordered that it be remedied by reinstatement or compensation. The employer's reliance on the failure to pay the filing fee as a justification for the dismissal was deemed insufficient to substantiate the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established