Mrs Olivier Ngarambe v Christine Summary

[2023] FWC 1065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Olivier Ngarambe
v

Christine

(U2023/2252)

DEPUTY PRESIDENT O'NEILL

MELBOURNE, 5 MAY 2023

Application for an unfair dismissal remedy

On 17 March 2023 Mrs Olivier Ngarambe 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 Mrs Ngarambe did not pay the required fee or file a completed waiver form. The application also lacked particulars of the Respondent and their contact details.

On 23 March 2023 the Commission attempted to contact Mrs Ngarambe on her nominated telephone number to request the missing details. However, Mrs Ngarambe could not be reached. A voicemail message was left requesting Mrs Ngarambe contact the Commission to discuss the matter further. Both the matter and Commission’s contact numbers were quoted.

Later that day the Commission emailed correspondence to Mrs Ngarambe’s nominated email address advising that her application required payment of the filing fee or a completed 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. An SMS notification was also sent to Mrs Ngarambe’s nominated telephone number advising that there was a problem with her application and requesting she contact the Commission.

A final attempt to contact Mrs Ngarambe was made by the Commission on 4 April 2023 to obtain payment or a completed waiver form. However, Mrs Ngarambe could not be reached. A voicemail message was left advising Mrs Ngarambe that her application may be at risk of dismissal if left unactioned. Both the matter and Commission’s contact numbers were again quoted.

To date Mrs Ngarambe has not paid the required fee or completed a waiver form.

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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mrs Olivier Ngarambe sought an unfair dismissal remedy from the Fair Work Commission against Christine, but her application was dismissed due to failure to meet procedural requirements. The application was incomplete, lacking the required fee, a completed waiver form, and particulars of the Respondent and their contact details. The Commission made multiple attempts to contact Mrs Ngarambe to request the missing information, but these were unsuccessful. Ultimately, Mrs Ngarambe did not provide the necessary information, resulting in the application being dismissed under section 587(1)(a) of the Fair Work Act 2009. The Deputy President found that the application was not made in accordance with the Act, leading to its dismissal.

The central legal issues were whether the application complied with the procedural requirements of the Fair Work Act 2009 and whether the application could be dismissed for non-compliance. The Deputy President considered section 395 of the Act, which mandates that applications must be accompanied by the prescribed fee, and section 587(1)(a), which allows for the dismissal of applications that are not made in accordance with the Act. The key issue was whether the application could be dismissed due to non-compliance with the requirement to pay the application fee or submit a completed waiver form.

The Deputy President concluded that the application did not meet the procedural requirements as it lacked the prescribed fee, which is necessary under section 395 of the Fair Work Act. Despite multiple attempts to contact Mrs Ngarambe and provide her with opportunities to rectify the deficiencies, she did not take any action. Consequently, the Deputy President found that the application was not made in accordance with the Act and dismissed it under section 587(1)(a). The dismissal was justified as the application failed to meet the basic procedural requirements.

The final orders of the Deputy President were that Mrs Ngarambe’s application for an unfair dismissal remedy be dismissed pursuant to section 587(1)(a) of the Fair Work Act 2009. No costs were awarded as the dismissal was based on procedural grounds.

Mrs Olivier Ngarambe v Christine

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established