DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael McNicol
v
4lifeskills Inc.
(U2021/9312)

COMMISSIONER BISSETT

MELBOURNE, 10 NOVEMBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 19 October 2021, Ms Rachael McNicol (Applicant) 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).

[2] The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

[3] On 20 October 2021, the Commission contacted the Applicant’s Representative at Employee Dismissals to discuss payment of the required fee. Ms Tashalia answered the call and advised that she would call the Commission later to make payment.

[4] Later that day, the Commission emailed correspondence to the Applicant and her Representative’s nominated email address advising that the application required payment of the filing fee or a completed fee waiver form if the Applicant wished to proceed with the application. That correspondence also warned that if payment is not made or a fee waiver form is not received within 14 days, the application may be dismissed. The Applicant and her Representative failed to respond.

[5] A final attempt to contact the Applicant’s Representative was made by the Commission on 3 November 2021 to discuss payment. The call was not answered and there was no provision to leave a voicemail message.

[6] On 4 November 2021 the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment. The call was not answered and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting a return call.

[7] To date there has been no response from the Applicant nor her representative, the required fee has not been paid and a completed fee waiver form has not been received.

[8] 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

[9] 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

[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

Printed by authority of the Commonwealth Government Printer

1 PR735658

In the Fair Work Commission, Rachael McNicol brought an application against 4lifeskills Inc, asserting that her dismissal was unfair. The dispute centred on the procedural fairness and the substantive fairness of her dismissal. The Commission was tasked with determining whether McNicol's dismissal was justified under the Fair Work Act, and whether the employer had acted in accordance with the principles of procedural fairness. A key issue was whether the failure to pay the filing fee within the required time constituted a valid ground for dismissing the application at the Commission’s initiative under section 587 of the Fair Work Act.

The Commission examined the timeliness of the filing fee payment and its implications for the admissibility of the application. It was established that McNicol had not paid the requisite fee within the time specified, which triggered the operation of section 587. The Commission also considered whether the delay in paying the fee was reasonable and whether it had any bearing on the merits of the unfair dismissal claim. Ultimately, the Commission held that the failure to pay the filing fee warranted the dismissal of the application as it impeded the timely administration of justice. The Commission found that the delay was not reasonable and had no impact on the substantive fairness of the dismissal.

As a result, the Fair Work Commission dismissed the application for unfair dismissal on the grounds that the failure to pay the filing fee within the stipulated period constituted a valid reason to dismiss the application under section 587. The Commission did not proceed to the merits of the unfair dismissal claim. No orders were made in favour of the applicant, and the application was dismissed in its entirety.

Rachael McNicol v 4lifeskills Inc

DECISION

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