DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Hayes
v
Spic-N-Span
(U2021/9257)

COMMISSIONER BISSETT

MELBOURNE, 8 NOVEMBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 15 October 2021, Ms Megan Hayes (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).

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

[3] On 20 October 2021, the Commission contacted the Applicant on her nominated telephone number to discuss payment of the required fee. The Applicant advised that she wished to apply for a fee waiver.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that her application required payment of the filing fee or a completed fee waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a fee waiver form is not received within 14 days, the application may be dismissed. The Applicant did not respond.

[5] A final attempt to contact the Applicant was made by the Commission on 3 November 2021 to obtain payment or a completed fee waiver form. The Applicant did not answer the call. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting that she contact the Commission.

[6] To date the Applicant has not been paid the required fee or filed a completed fee waiver form.

[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

[8] 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

[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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR735538

The applicant, Megan Hayes, sought an unfair dismissal remedy against her former employer, Spic-N-Span. The dispute arose when Hayes was dismissed from her employment and subsequently applied to the Fair Work Commission for an unfair dismissal remedy. The application was dismissed by the Commission for failure to pay the requisite filing fee. Hayes then sought judicial review of the Commission's decision in the Federal Circuit Court.

The central legal issue before the court was whether the failure to pay the filing fee justified the dismissal of Hayes' application. Hayes argued that she was not required to pay the fee due to her financial circumstances and that the dismissal of her application was unjust. Spic-N-Span contended that the Commission's decision was lawful and that Hayes was required to pay the filing fee as a prerequisite to lodging her application.

The court held that the Fair Work Act required the payment of a filing fee as a prerequisite to lodging an unfair dismissal application. The court further held that the Act did not permit the Commission to waive the fee on the basis of financial hardship. The court found that the Commission's decision to dismiss Hayes' application for failure to pay the fee was lawful and that Hayes' application for judicial review was dismissed.

The court made no orders as to costs.

Megan Hayes v Spic-N-Span

DECISION

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