Rachael Garner v M & v Group 1 Pty Ltd
[2024] FWC 2956
•24 OCTOBER 2024
| [2024] FWC 2956 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rachael Garner
v
M & V Group 1 Pty Ltd
(U2024/9595)
| DEPUTY PRESIDENT EASTON | SYDNEY, 24 OCTOBER 2024 |
Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with the Act – application dismissed – s.587(1)(a).
On 18 August 2024 Miss Rachael Garner made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).
For the reasons that follow I am satisfied that Miss Garner’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.
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.”
Miss Garner’s application was incomplete because Miss Garner did not pay the required fee or file a completed request to waive the fee.
Commission staff contacted Miss Garner on the 22 August 2024 by telephone, SMS and letter.
Miss Garner was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application. Ms Garner was also warned that the application could be dismissed if the filing fee was not paid by 5 September 2024.
To date there has been no response from Miss Garner, no fee paid and no waiver request received.
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.”
Miss Garner’s 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 Miss Garner’s application.
Miss Garner 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.
In the circumstances I am satisfied that Miss Garner’s application should be dismissed.
I have separately made an order dismissing Miss Garner’s application (PR780574).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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