Kristi Ann Martin v Kentish Lifelong Learning and Care Incorporated

[2022] FWC 113

[2022] FWC 113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kristi Ann Martin
v

Kentish Lifelong Learning And Care Incorporated

(U2021/11881)

COMMISSIONER BISSETT MELBOURNE, 27 JANUARY 2022

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

1. On 20 December 2021, Ms Kristi Ann Martin (Applicant) 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).

1. The application made by the Applicant was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

1. On 21 December 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment however, the Applicant did not answer the call. A voicemail message was left requesting she call the Commission to discuss the payment of the fee.

1. Later that day, the Commission emailed correspondence to the Applicant’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.

1. On 5 January 2022 the Commission made a further attempt to contact the Applicant on her nominated telephone number. The Applicant did not answer the call. A voicemail was left requesting she contact the Commission to provide payment of the application fee and advising that the application was in danger of being dismissed if no contact was made.

1. A final attempt to contact the Applicant was made by the Commission on 13 January 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and that the matter may be dismissed if no return contact was made.

1. To date, the required fee has not been paid and a completed fee waiver form has not been received.

1. 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.

1. 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 prospects of success.

1. 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]PR737678)

Printed by authority of the Commonwealth Government Printer

<PR737677>