Lena O'Toole v Bhp Coal

[2023] FWC 33

[2023] FWC 33

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lena O’Toole
v

Bhp Coal

(U2022/10867)

COMMISSIONER BISSETT MELBOURNE, 5 JANUARY 2023

Application for an unfair dismissal remedy – unpaid application – dismissal at the Commission’s initiative pursuant to s.587

1. On 12 November 2022 Ms Lena O'Toole 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 was incomplete in that Ms O'Toole did not pay the required fee or file a completed waiver form.

1. On 15 November 2022 the Commission emailed correspondence to Ms O'Toole’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 was not made or a waiver form was not received within 7 calendar days the application may be dismissed. An SMS notification was also sent to Ms O'Toole’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

1. On 30 November 2022 the Commission emailed correspondence to Ms O'Toole’s nominated email address reminding 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 was not made or a waiver form was not received, the application may be dismissed.

1. Two final attempt to contact Ms O'Toole on her nominated telephone number were made by the Commission on 12 December 2022 and 20 December 2022 to obtain payment or a completed waiver form. The calls were not answered. Voicemail messages were left advising Ms O'Toole that payment of the required fee was still outstanding.

1. To date there has been no response from Ms O'Toole, the required fee has not been paid and a completed 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 prospect of success.

1. 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, I order that the application is dismissed pursuant to s.587(1)(a) of the FW Act.

COMMISSIONER

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