Rachael McNicol v 4lifeskills Inc

[2021] FWC 6312

[2021] FWC 6312

FAIR WORK COMMISSION

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

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

[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

(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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