Lien Scott v Opus Recruitment Solutions Summary

[2023] FWC 151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lien Scott
v

Opus Recruitment Solutions

(U2022/12409)

COMMISSIONER BISSETT

MELBOURNE, 19 JANUARY 2023

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

On 30 December 2022 Ms Lien Scott 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 Scott did not pay the required fee or file a completed waiver form.

On 6 January 2023 the Commission emailed correspondence to Ms Scott’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. On 9 January 2023 an SMS notification was also sent to Ms Scott’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

On 10 January 2023 the Commission emailed correspondence to Ms Scott’s nominated email address reminding her that the 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.

A final attempt to contact Ms Scott on her nominated telephone number was made by the Commission on 12 January 2023 to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising Ms Scott that payment of the required fee was still outstanding.

To date there has been no response from Ms Scott, 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, I order that the application is dismissed pursuant to s.587(1)(a) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Lien Scott sought a remedy for unfair dismissal against her former employer, Opus Recruitment Solutions. Ms Scott lodged an application with the Commission under s.394 of the Fair Work Act 2009, which provides for unfair dismissal remedies. However, the application was incomplete as Ms Scott failed to pay the required fee or file a completed waiver form. The Commission notified Ms Scott on multiple occasions, both by email and SMS, that her application needed either the fee or the waiver form to proceed. Despite these communications, Ms Scott did not respond or take any action to comply with the requirements. This case required the Commission to consider whether the application could be dismissed due to non-compliance with the Act.

The central legal issue before the Commission was whether Ms Scott's application could be dismissed under s.587 of the Fair Work Act due to non-compliance with the application requirements. Specifically, the Commission needed to determine if the failure to pay the required fee or file a completed waiver form rendered the application non-compliant and thus dismissible. The relevant provisions of the Act, s.395 concerning application fees and s.587 concerning the dismissal of applications, were central to resolving this issue. The Commission concluded that the application was not made in accordance with the Act due to the missing fee and, therefore, the application could be dismissed under s.587(1)(a).

In reaching its decision, the Commission noted that the Fair Work Act explicitly requires an application to be accompanied by the prescribed fee. Ms Scott's failure to pay the fee or file a waiver form meant the application did not comply with the Act. Despite multiple attempts to contact Ms Scott and inform her of the necessary steps to proceed, she did not respond or take any action. The Commission was satisfied that the application could be dismissed as it did not meet the statutory requirements. Accordingly, the Commission ordered the dismissal of the application under s.587(1)(a) of the Fair Work Act.

The final order of the Commission was that the application made by Ms Lien Scott for a remedy for unfair dismissal against Opus Recruitment Solutions be dismissed. This dismissal was pursuant to s.587(1)(a) of the Fair Work Act, as the application was not made in accordance with the Act due to the absence of the required fee or a completed waiver form.

Lien Scott v Opus Recruitment Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established