DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie-Anne Deushain
v
UCA - Parramatta Mission
(U2019/8081)

DEPUTY PRESIDENT DEAN

SYDNEY, 21 AUGUST 2019

Application for an unfair dismissal remedy - filing fee not paid – application dismissed.

[1] On 22 July 2019, Mrs Kylie-Anne Deushain made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] Mrs Deushain did not pay the required fee.

[3] Section 395, 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

[4] On 29 July 2019, Mrs Deushain was advised by both telephone and email that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[5] Further attempts to contact Mrs Deushain were made by telephone on 29 July 2019 and 16 August 2019 without success. A voicemail was left on 16 August 2019.

[6] Mrs Deushain did not contact the Commission or provide the necessary details as requested.

[7] 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

[8] 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 that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kylie-Anne Deushain, a former employee of Uca Parramatta Mission, lodged an application for unfair dismissal remedy with the Fair Work Commission. The application was dismissed by the Federal Circuit Court of Australia due to the failure of the applicant to pay the requisite filing fee. The applicant subsequently sought judicial review of the decision to dismiss her application, arguing that the dismissal was unjust and that she had been unaware of the need to pay a filing fee.

The central legal issue before the Court was whether the dismissal of the applicant's application for unfair dismissal was lawful and justified under the applicable legal framework. Specifically, the Court had to determine whether the dismissal was an appropriate exercise of the Court's discretion, and whether the applicant's lack of awareness of the need to pay a filing fee constituted a valid ground for setting aside the dismissal.

The Court found that the dismissal of the application was a legitimate exercise of the Court's discretion. It was held that the failure to pay the filing fee was a procedural requirement that the applicant was obligated to comply with, and that the dismissal was not an abuse of the Court's process. The Court further held that the applicant's lack of awareness of the need to pay a filing fee did not constitute a valid ground for setting aside the dismissal, as the applicant had an obligation to ensure that she was aware of the procedural requirements for lodging an application. The Court dismissed the application for judicial review, finding that the dismissal of the original application was lawful and justified.

The Court did not make any orders in relation to the costs of the application for judicial review.

Kylie-Anne Deushain v Uca Parramatta Mission

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established