Kim McKinnon v Lca East Gardens Pty Limited

[2023] FWC 648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kim McKinnon
v

Lca East Gardens Pty Limited

(U2023/1414)

COMMISSIONER BISSETT

MELBOURNE, 21 MARCH 2023

Application for an unfair dismissal remedy

On 22 February 2023 Ms Kim McKinnon 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 McKinnon did not pay the required fee or file a completed waiver form.

On 24 February 2023 the Commission emailed correspondence to Ms McKinnon’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 7 calendar days the application may be dismissed.

On 27 February 2023 the Commission sent correspondence to Ms McKinnon’s nominated email address reminding that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received, the application may be dismissed.

Attempts to contact Ms McKinnon on their nominated telephone number were made by the Commission on 2 March 2023, 7 March 2023 and 8 March 2023 to obtain payment or a completed waiver form. The calls were not answered. A voicemail message was left advising Ms McKinnon that payment of the required fee was still outstanding.

To date there has been no response from Ms McKinnon, 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 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 prospect of success.

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.

COMMISSIONER

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CaseChat Overview and Summary

Kim McKinnon filed an application for unfair dismissal against Lca East Gardens Pty Limited under section 394 of the Fair Work Act 2009. The application was dismissed for failure to comply with the procedural requirements, specifically the non-payment of the filing fee or submission of a waiver form. The Fair Work Commission issued notices to McKinnon, emphasizing the need to either pay the fee or file a waiver form within a stipulated period. Despite multiple reminders and attempts to contact McKinnon, no action was taken by her to address the incomplete application. The Commission ultimately dismissed the application for non-compliance with the Act.

The primary legal issue the Fair Work Commission addressed was whether McKinnon's application complied with the procedural requirements under the Fair Work Act. Specifically, the Commission examined whether the application was made in accordance with section 395, which mandates the payment of a prescribed application fee, and section 587, which allows for the dismissal of applications that do not meet the Act's requirements. The Commission found that McKinnon's failure to pay the required fee or submit a completed waiver form rendered the application non-compliant with section 395, leading to its dismissal under section 587(1)(a).

In reaching its decision, the Commission noted that McKinnon's application was incomplete due to the absence of the required fee or a waiver form. Despite multiple reminders and attempts to contact McKinnon to rectify this, there was no response or action taken. The Commission concluded that the application did not comply with the Act and thus dismissed it under section 587(1)(a). The Commission's decision was based on the clear requirement of the Fair Work Act that applications be accompanied by the prescribed fee or a valid waiver, and McKinnon's failure to meet this basic procedural requirement.

No further action can be taken on the application for unfair dismissal as it has been dismissed. McKinnon's application will not proceed unless she addresses the procedural deficiencies by either paying the required fee or providing a completed waiver form, and resubmits the application in compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established