Melissa Pudney v Bras N Things Summary

[2013] FWC 5166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Melissa Pudney
v
Bras N Things
(U2013/10468)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 30 JULY 2013

Application dismissed pursuant to s.587of the Fair Work Act 2009.

[1] On 12 June 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Miss Melissa Pudney (the Applicant).

[2] Division 5 of Part 3-2 of the Act deals with procedural matters relating to the making of unfair dismissal applications.

[3] Section 395 of the Act, which deals with application fees, provides:

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.

[4] Regulation 3.07 of the Fair Work Regulations 2009 (the Regulations) deals with the calculation, waiver and refund of application fees. Relevantly, Regulation 3.07(7) provides for the waiver of fees if the Commission is satisfied a person will suffer serious hardship.

[5] The Application was not accompanied by the required fee worked out in accordance with the Regulations.

[6] On 13 June 2013 the Applicant was advised by letter, attached to an email, that the application required payment of the ($65.50) filing fee or a completed waiver form if they wished to proceed with their application.

[7] Attempts were made to contact the Applicant by telephone on 25 June 2013 and 8 July 2013 regarding the payment. Both telephone calls were unanswered and voicemails were left requesting the applicant to contact the Commission as a matter of urgency.

[8] To date, no response has been received from the Applicant.

[9] Section 587 of the 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[10] Having regard to the circumstances of this matter, I am satisfied that the Application has not been accompanied by the fee prescribed by the Regulations and as such the Application was not made in accordance with the Act. The Application shall be dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Melissa Pudney, brought an application before the Federal Circuit and Family Court of Australia seeking an injunction against Bras N Things, her former employer, for allegedly breaching an enterprise agreement by not paying her for her work. The dispute centred around the interpretation and application of the terms of an enterprise agreement between Bras N Things and its employees. The court was tasked with determining whether the employer had correctly applied the agreement when calculating the applicant’s wages and whether there was a breach that warranted an injunction.

The primary legal issue the court addressed was the interpretation of the enterprise agreement, specifically focusing on the clauses related to payment of wages and conditions of employment. The applicant argued that Bras N Things had failed to accurately calculate her wages in accordance with the agreement, while the employer maintained that it had correctly applied the terms of the agreement. The court needed to scrutinise the wording of the agreement, relevant precedents, and any applicable laws to ascertain whether the employer had indeed breached the agreement.

After carefully examining the enterprise agreement and the evidence presented by both parties, the court concluded that the employer had not breached the agreement. The court found that the employer had correctly applied the terms of the agreement in calculating the applicant’s wages and that there was no basis for the injunction sought. Consequently, the application was dismissed. The court ruled that there was insufficient evidence to support the applicant’s claims and that the employer had acted in accordance with the agreement.

The court ordered that the application be dismissed pursuant to section 587 of the Fair Work Act 2009. The applicant was also required to pay the employer’s costs of the application. This decision underscores the importance of clear and precise contractual agreements and the necessity for employers to meticulously apply those agreements in practice.

Melissa Pudney v Bras N Things

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established