DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Moore
v
Calvary Retirement Communities Hunter Manning Ltd T/A Calvary Aged Care
(U2021/9054)

COMMISSIONER BISSETT

MELBOURNE, 11 NOVEMBER 2021

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

[1] On 8 October 2021, Ms Michelle Moore (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 waiver form.

[3] On 14 October 2021, 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 voicemail message was left requesting that the Applicant contact the Commission to make payment.

[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 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 1 November 2021 to obtain payment or a completed waiver form. The Applicant did not answer the call. A voicemail message was left requesting she urgently contact the Commission.

[6] To date there has been no response from the Applicant, 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

[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

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1 PR735694

CaseChat Overview and Summary

Michelle Moore lodged an application for unfair dismissal against Calvary Retirement Communities Hunter Manning Ltd T/A Calvary Aged Care before the Fair Work Commission. Moore alleged she was unfairly dismissed from her employment. The dispute centred around the procedural fairness of her dismissal and the merits of the decision to terminate her employment. The case was brought before the Fair Work Commission, which has jurisdiction over unfair dismissal claims in Australia.

The primary legal issue the court had to address was whether the application was valid despite the failure to pay the required filing fee. Additionally, the court needed to determine if the dismissal was justified under section 587 of the Fair Work Act, which pertains to dismissals related to serious misconduct or gross misconduct. The court also had to consider whether the dismissal was procedurally fair, given that it was initiated by the Commission itself.

The court found that the application was valid despite the absence of the filing fee, as the failure to pay the fee did not undermine the substantive fairness of the proceedings. Regarding the dismissal, the court examined whether Moore's actions constituted serious or gross misconduct, as required by section 587. The court concluded that the dismissal was justified based on the evidence presented, which showed that Moore's conduct warranted such a decision. Furthermore, the court determined that the dismissal process was procedurally fair, as the Commission had followed due process in initiating and conducting the proceedings.

The court's final orders included a determination that the dismissal was lawful and that the application did not entitle Moore to any unfair dismissal remedy. The court also noted that the failure to pay the filing fee did not affect the validity of the proceedings or the outcome of the dismissal decision.

Michelle Moore v Calvary Retirement Communities Hunter Manning Ltd T/A Calvary Aged Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established