Nanara Bryson v Sugandh-Jay Pty Ltd

[2019] FWC 8309

[2019] FWC 8309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nanara Bryson
v
Sugandh-Jay Pty Ltd
(U2019/12375)

COMMISSIONER BISSETT MELBOURNE, 9 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] On 7 November 2019, Mrs Nanara Bryson (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by the Applicant in the Commission was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act. When submitting the application online, the Applicant uploaded a copy of a payslip to the Commission’s online lodgment system in place of a fee waiver form.

[3] Section 395 of the FW 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[4] On 7 November 2019, the Commission contacted the Applicant on her nominated mobile telephone number to inform her that she had uploaded a payslip and not a completed fee waiver form when she submitted her application online. The Applicant advised the Commission that she would complete the fee waiver form.

[5] On 7 November 2019, the Commission emailed correspondence to the Applicant’s nominated email address. That correspondence advised that her application required payment of the filing fee or a completed fee waiver form if she wished to proceed with her application. The correspondence advised that if the fee was not paid and a completed waiver fee form was not received within 14 days, the application may be dismissed. A copy of the fee waiver form was attached with this correspondence.

[6] On 15 November 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number in relation to the correspondence dated 7 November 2019. The Applicant did not answer and a voicemail message was left advising that the Commission was following up on the fee waiver form. The Commission requested the Applicant return the call and advised that the matter may be dismissed if no fee waiver form is provided or payment is not made.

[7] On 5 December 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left advising that she was required to make payment or submit a completed fee waiver form as soon as possible. The Commission advised that if the Applicant did not respond, the application would likely be dismissed.

[8] To date, no response was received from the Applicant. Payment of the required fee has not been made and no fee waiver form has been received.

[9] Section 587(1) of the FW 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

(c) the application has no reasonable prospects of success.

[10] 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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