Kaylene McErlean v Cherubs Childcare Centre

[2016] FWC 4923

[2016] FWC 4923

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kaylene McErlean
v
Cherubs Childcare Centre
(U2016/7186)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 JULY 2016

Application for relief from unfair dismissal.

[1] On 25 May 2016, Ms Kaylene McErlean made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] Ms McErlean did not pay the required fee or complete a waiver fee application form.

[3] On 25 May 2016, Ms McErlean was advised by telephoned that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. Ms McErlean advised she would be applying to have the fee waived. A letter and waiver form was sent to Ms McErlean on this date.

[4] On 9 June 2016, the Commission attempted to telephone Ms McErlean and a voice message was left on her mobile phone to contact the Commission. A letter was sent advising Ms McErlean that her application remained incomplete.

[5] On 23 June 2016, the Commission attempted to telephone Ms McErlean and a voice message was left on her mobile phone to contact the Commission.

[6] Ms McErlean contacted the Commission on 23 June 2016 advising that she had posted a waiver form to the Commission. She was advised the Commission was not in receipt of same.

[7] On 6 July 2016, the Commission attempted to telephone Ms McErlean and a voicemail message was left on her mobile phone to contact the Commission.

[8] On 6 July 2016 and 19 July 2016, the Commission also emailed Ms McErlean advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. The correspondence advised Ms McErlean that in the absence of any advice from her within 14 days, her application would be dismissed.

[9] To date, Ms McErlean has not provided payment or a completed waiver form as requested.

[10] Section 395 of the Act, 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.”

[11] 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.”

[12] 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, 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 to this effect will be issued shortly.

DEPUTY PRESIDENT

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