DECISION

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

Miriama Wikohika
v
Ludi Mining SA Pty Ltd T/A Andermel
(U2017/5233)

COMMISSIONER HAMPTON

ADELAIDE, 22 JUNE 2017

Application for an unfair dismissal remedy – non-payment.

[1] On 17 May 2017, Ms Jaspreet Kaur of the Working Women’s Centre SA Inc (WWC) lodged an application on behalf of Ms Miriama Wikohika for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] 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

[3] No fee accompanied the application and Ms Kaur advised the Commission that Ms Wikohika would complete and file a waiver form.

[4] On 19 May 2017, the Commission wrote to Ms Wikohika, and her representative, requesting that she complete and return the waiver form.

[5] On 23 May 2017, the Commission again wrote to Ms Wikohika, and her representative, advising that her application required payment of the filing fee or a completed waiver form if she wished for it to proceed and that in the absence of any advice within 14 days, the application may be dismissed.

[6] This advice was reinforced in correspondence, and by email, to Ms Wikohika on 7 and 13 June 2017 respectively.

[7] Although not required to do so, staff of the Commission again (unsuccessfully) sought to contact Ms Wikohika by telephoned on 15 June 2016. On that day, the Commission also telephoned Ms Kaur, who advised that the applicant had not responded to any correspondence from the WWC. The Commission advised Ms Kaur that the matter would be allocated to a Member of the Commission to consider dismissal of the application.

[8] No response was received from Ms Wikohika and payment of the required fee has not been made. Ms Wikohika has also, in effect, abandoned her application. I further note given the passage of time since the dismissal and the non-payment of the fee required by the Act, it is also likely that no valid application has been lodged within the 21 day initial time period prescribed by s.394(2) of the Act.

[9] Section 587(1) 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

[10] In considering all of the circumstances, I am satisfied that the relevant application was not accompanied by the prescribed fee and has not been made in accordance with the Act. On one view there is not a proper application before the Commission and no further action is required. However, a non-compliant application is directly contemplated by s.587(1)(a) of the Act, and as a matter of abundant caution, I am satisfied that it is appropriate in all of the circumstances to dismiss the application.

[11] Accordingly, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

1 PR593989.

Printed by authority of the Commonwealth Government Printer

Miriama Wikohika has brought an application against Ludi Mining SA Pty Ltd, trading as Andermel, for an unfair dismissal remedy. The dispute revolves around the claimant's assertion that she was unfairly dismissed due to non-payment of wages and entitlements. The case was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the claimant's dismissal was unjust, given the employer's failure to pay wages and entitlements. The claimant argued that the lack of payment constituted a serious breach of contract and a fundamental unfairness in the termination process. The employer, on the other hand, contended that the termination was justified due to the claimant's conduct and the financial difficulties of the company.

The Commission found that the employer's failure to pay wages and entitlements constituted a serious breach of the employment contract and amounted to a fundamental unfairness in the dismissal process. The Commission determined that the claimant's dismissal was unfair due to the employer's breach of contract and the lack of a valid reason for termination. The employer's financial difficulties were not considered a sufficient justification for the failure to pay wages and entitlements. As a result, the Commission ordered the employer to pay the claimant the outstanding wages and entitlements, along with compensation for the unfair dismissal.

Miriama Wikohika v Ludi Mining SA Pty Ltd T/A Andermel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established