Makayla Peri v Smithfield International Pty Ltd
[2024] FWC 725
•20 MARCH 2024
| [2024] FWC 725 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Makayla Peri
v
Smithfield International Pty Ltd
(U2024/693)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 20 MARCH 2024 |
Application for relief from unfair dismissal.
On 21 January 2024, Ms Makayla Peri made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).
The application was incomplete in that Ms Peri did not pay the required application fee, nor did she lodge a complete Form F80 – Application for waiver of the application fee (Form F80).
On 23 January 2024, the Commission contacted Ms Peri on her nominated telephone number. The Commission advised Ms Peri that the Form F80 she provided was not complete and the required fee was still outstanding. Ms Peri advised that she had trouble completing the Form F80 on her mobile. Ms Peri again attempted to email her Form F80, however, it was again incomplete, missing a signature and date. Ms Peri was requested to email a completed Form F80 again.
On 31 January 2024, the Commission emailed correspondence to Ms Peri’s nominated email address advising her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. That correspondence also warned that, if payment was not made or a Form F80 was not received, her application may be dismissed.
On 19 February 2024, the Commission attempted to contact Ms Peri on her nominated telephone number. The Commission was unable to reach Ms Peri and there was no facility to record a voicemail message.
On 20 February 2024, an attempt to contact Ms Peri was made by the Commission. The call was not answered, and a voicemail message was left advising Ms Peri that payment of the required fee was still outstanding and requesting that Ms Peri contact the Commission.
A final attempt to contact Ms Peri was made by the Commission on 11 March 2024. The call was not answered, and a voicemail message was left advising Ms Peri that payment of the required fee or a completed Form F80 was still outstanding and that her application was at risk of being dismissed.
In relation to an application made pursuant to s.394 of the Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.
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.
In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact her and the reminders, Ms Peri has not further responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An Order[2] to this effect will be issued with this decision.
DEPUTY PRESIDENT
<PR772563>
[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].
[2] PR772564.
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