Melissa Law v The Queensland Government

[2022] FWC 390

[2022] FWC 390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Unfair dismissal

Melissa Law

v

The Queensland Government

(U2022/1677)

cOMMISSIONER bISSETT MELBOURNE, 24 FEBRUARY 2022

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

1. On 8 February 2022, Ms Melissa Law (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).

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

1. On 8 February 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment of the required fee however the Applicant did not answer the call. A short 10 second voicemail message was left requesting she contact the Commission.

1. 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. 

1. A final attempt to contact the Applicant on her nominated telephone number was made by the Commission on 22 February 2022. The Applicant could not be reached. A short 10 second voicemail message was left requesting the she return the Commission’s call.

1. To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

1. I would also observe (although this was not raised with the Applicant) that the named employer (The Queensland Government) is not a National System Employer such that the Applicant is not a National System Employee as defined in the FW Act such that it appears, on its face, that she is not eligible to make an application for remedy for unfair dismissal.

1. 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.

1. 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.

1. 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

[1] PR738687

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