Katrina Malnar v Kids Club Phillip Management Pty Ltd

[2020] FWC 3254

[2020] FWC 3254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katrina Malnar
v
Kids Club Phillip Management Pty Ltd
(U2020/7061)

COMMISSIONER BISSETT MELBOURNE, 23 JUNE 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 21 May 2020, Ms Katrina Malnar 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).

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

[3] On 22 May 2020, the Commission attempted to contact Ms Malnar on her nominated telephone number to discuss payment, however Ms Malnar did not answer the call. A voicemail message was left requesting she contact the Commission. Ms Malnar did not return the Commission’s call.

[4] Later that day, the Commission sent email correspondence to Ms Malnar’s nominated email address attaching a fee waiver form and advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The correspondence also warned that if she did not pay the application fee or make an application to have the fee waived within 14 days her application may be dismissed. This was followed by an SMS notification sent to Ms Malnar’s nominated telephone number which sought a return call to discuss payment. Ms Malnar did not respond.

[5] On 4 June 2020 the Commission made a final attempt to contact Ms Malnar on her nominated telephone number to obtain payment or a completed fee waiver form. Ms Malnar did not answer the call. A voicemail message was left advising her that payment of the required fee was still outstanding and to contact the Commission.

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

[7] 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.

[8] Section 587(1) of the FW Act provides that:

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 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

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