Rachael Garner v M & v Group 1 Pty Ltd Summary

[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

CaseChat Overview and Summary

Rachael Garner lodged an unfair dismissal application against M & V Group 1 Pty Ltd with the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009. The application was lodged on 18 August 2024. The Deputy President of the FWC, Easton, dismissed the application on 24 October 2024, finding that the application was not made in accordance with the Act due to the non-payment of the required filing fee. The FWC issued multiple warnings to Ms Garner, advising her to pay the fee or apply for a waiver, but she failed to respond.

The legal issue before the FWC was whether Ms Garner's application complied with the statutory requirements under the Fair Work Act. Specifically, the court examined whether the application was made in accordance with s.395, which mandates the payment of a prescribed fee, and s.587, which allows the FWC to dismiss an application that does not comply with the Act. Ms Garner's failure to pay the required fee or apply for a waiver rendered her application non-compliant. The court assessed whether the dismissal of the application was justified under s.587(1)(a).

The FWC found that Ms Garner's application was not made in accordance with the Act because she did not pay the required fee or file a waiver request. Despite multiple warnings, she did not rectify the deficiency. The FWC exercised its discretion under s.587(1)(a) to dismiss the application. The Deputy President considered the case of Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, where similar circumstances led to the dismissal of an application. The court concluded that Ms Garner's application should be dismissed for non-compliance with the Act.

In light of the above findings, the Deputy President dismissed Rachael Garner's unfair dismissal application against M & V Group 1 Pty Ltd. The court issued a separate order dismissing the application (PR780574).

Rachael Garner v M & v Group 1 Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established