Maria ONeill v National Australia Bank T/A NAB

[2021] FWC 4160

[2021] FWC 4160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria ONeill
v
National Australia Bank T/A NAB
(U2021/5616)

COMMISSIONER BISSETT MELBOURNE, 15 JULY 2021

Application for an unfair dismissal remedy.

[1] On 28 June 2021, Miss Maria ONeill (the 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). Miss ONeill alleged she had been unfairly dismissed by National Australia Bank T/A NAB on 9 June 2021.

[2] The application was incomplete in that Miss ONeill did not pay the required fee or file a completed waiver form.

[3] On 29 June 2021 the Commission emailed correspondence to Miss ONeill’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 14 days, the application may be dismissed. An SMS notification was also sent to Miss ONeill’s nominated telephone number, advising that there was a problem with her application and requesting she contact the Commission.

[4] On 29 June 2021 the applicant contacted the Fair Work Commission regarding the correspondence she received. The Commission explained that the waiver form she submitted was blank. Miss ONeill apologised and said that she would submit a completed waiver form. However, no such form was received.

[5] A final attempt to contact Miss ONeill was made by the Commission on 12 July 2021 to obtain payment or a completed waiver form. Miss ONeill advised that she had not looked at her application as she had been having job interviews. The Commission explained that the matter was at risk of being dismissed as we had not received payment or a completed waiver form. The Commission asked if she could submit a completed waiver form that day and Miss ONeill agreed to do this.

[6] Despite this, to date there has been no response from Miss ONeill, the required fee has not been paid and a completed waiver form has not been received.

[7] 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.

[8] Section 587(1) of the FW 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

(c) the application has no reasonable prospect of success.

[9] 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 with this decision.

COMMISSIONER

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