Miss Remi Dejah Smith v Catriona Maclaine T/A La Cafe

[2023] FWC 395

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Miss Remi Dejah Smith

Catriona Maclaine T/A La Cafe

(U2023/544)

COMMISSIONER BISSETT

MELBOURNE, 17 FEBRUARY 2023

Application for an unfair dismissal remedy

On 20 January 2023 Miss Remi Dejah Smith 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).

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

On 24 January 2023, the Commission emailed correspondence to Miss Smith’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 7 calendar days the application may be dismissed. An SMS notification was also sent to Miss Smith’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

On 30 January 2023, the Commission emailed correspondence to Miss Smith’s nominated email address reminding that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received, the application may be dismissed.

Final attempts to contact Miss Smith on their nominated telephone number was made by the Commission on 2, 7 and 9 February 2023 to obtain payment or a completed waiver form. The call was not answered on all three occasions. Voicemail messages was left at each instance advising Miss Smith that payment of the required fee was still outstanding and failure to provide payment of the application fee or a completed waiver may result in her application being dismissed.

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

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.

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 prospect of success.

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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Miss Remi Dejah Smith v Catriona Maclaine T/A La Cafe, the applicant, Miss Smith, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Her application was incomplete due to the absence of the required filing fee and a completed waiver form. The respondent, Ms Maclaine, trading as La Cafe, was the employer involved in the dispute. The Fair Work Commission was tasked with determining whether the application could proceed despite the incomplete submission.

The primary legal issue the Commission had to address was whether the application could be dismissed under section 587(1)(a) of the Fair Work Act due to the non-compliance with the fee requirements as stipulated in section 395 of the Act. The Commission had to consider whether the failure to pay the application fee and submit the waiver form constituted a breach of the Act, which would warrant the dismissal of the application.

The Fair Work Commissioner, Bissett, concluded that the application was not made in accordance with the Fair Work Act as required by section 395. The Commissioner found that despite multiple attempts to contact Miss Smith regarding the outstanding fee and waiver form, there had been no response from the applicant. Consequently, the application was dismissed pursuant to section 587(1)(a) of the Fair Work Act.

As a result of the dismissal, no further consideration of the merits of Miss Smith's unfair dismissal claim was made. The Commission's decision was based solely on the procedural non-compliance with the fee requirements, and no substantive ruling on the fairness of the dismissal was issued.

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