Marise Warren v Armacy Pty Ltd & Owen Pharmacy (Salamander Bay) Pty Ltd
[2025] FWC 147
•16 JANUARY 2025
| [2025] FWC 147 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marise Warren
v
Armacy Pty Ltd & Owen Pharmacy (Salamander Bay) Pty Ltd
(U2024/13494)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 16 JANUARY 2025 |
Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed – s.587(1)(a).
On 12 November 2024, Mrs Marise Warren made an unfair dismissal application (the Application) to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act).
For the reasons that follow I am satisfied that the Application has not been made in accordance with the Act and that the application has no reasonable prospects of success. It therefore follows that it is appropriate to dismiss the Application.
Section 395 of the Act is in the following terms:
“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.”
On 15 November 2024, the Commission emailed the Applicant setting out that there was missing or incorrect information with the Application. That missing or incorrect information, as referred to in the aforementioned email, included: (a) the date when Mrs Warren’s employment commenced; (b) the inclusion of two Respondents as the employer; and (c) an incomplete fee waiver form - answers to questions two to six were not provided.
Commission staff contacted Mrs Warren on the following dates:
· 15 November 2024 by telephone and leaving a detailed voice message in respect of naming two respondents and not providing a date of employment commencement;
· 15 November 2024 by SMS concerning an incomplete application; and
· 27 November 2024 by telephone and detailed voice message.
In respect of the detailed voice message to Mrs Warren on 27 November 2024, Mrs Warren was informed of the issues concerning her Application and that she had been notified of these issues 12 days prior and yet the Commission had not heard from her concerning her Application. Mrs Warren was informed to seek legal advice immediately and send through the required information to ‘[email protected]’, quoting matter number U2024/13494 by end of day on 27 November 2024. The Applicant was further informed in the voicemail that if the Commission did not receive the required information within the timeframe provided that the Application may be referred to a Member who may dismiss the matter without further notice. It was confirmed that the Applicant could call the Commission on 1300 799 675 if she had any questions regarding the voicemail.
To date there has been no response from Mrs Warren, no fee paid, and no waiver request received.
Section 587 of the Act includes the following provisions:
““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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Briefly stated, the Application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Furthermore, notwithstanding the repeated attempts to contact Mrs Warren, whether by telephone, message or email, Mrs Warren has been non-responsive.
Section 587 confers a discretion on the Commission to dismiss the Application. Mrs Warren has been given ample opportunity to rectify the deficiency in the Application with respect to the unpaid fee (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein), and to have addressed the issue regarding the commencement date of her employment and that two Respondents had been named in the Application. The Commission’s inquiries and warnings have largely been ignored.
In the circumstances, I am satisfied that the Application should be dismissed under s 587(1)(a) and (c) of the Act, by the facility made available in s 583(3)(a) of the Act.
I have separately made an order dismissing the application (PR783338).
DEPUTY PRESIDENT
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