Ms Nicole Hutchinson v Little Snappers Swim School

[2024] FWC 2821

[2024] FWC 2821

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ms Nicole Hutchinson
v

Little Snappers Swim School

(U2024/9742)

DEPUTY PRESIDENT EASTON SYDNEY, 9 OCTOBER 2024

Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed – s.587(1)(a).

1. On 21 August 2024, Ms Nicole Hutchinson made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Ms Hutchinson’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

1. Section 395 of the Act is in the following terms:

“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.”

1. Ms Hutchinson’s application was incomplete because Ms Hutchinson did not pay the required fee or file a completed request to waive the fee.

1. Commission staff contacted Ms Hutchinson on the following dates:

·   25/8/24 by email;

·   28/8/24 by email; and

·   3/9/24 by telephone.

1. Ms Hutchinson was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application. Ms Hutchinson was also warned that the application could be dismissed if the filing fee was not paid within 7 calendar days.

1. On 28 August 2024 Ms Hutchinson responded by email and advised that she will be lodging a waiver and was having problems printing it.

1. To date there has been no further response from Ms Hutchinson, no fee paid and no waiver request received.

1. Section 587 of the Act includes the following provisions:

“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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Ms Hutchinson application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Ms Hutchinson application.

1. Ms Hutchinson has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

1. In the circumstances I am satisfied that Ms Hutchinson’s application should be dismissed.

1. I have separately made an order dismissing Ms Hutchinson’s application (PR780106).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR780105>