Rhiannon Burger v The Trustee for Osborne Truck Rentals Unit Trust

[2020] FWC 5085

[2020] FWC 5085

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhiannon Burger
v
The Trustee for Osborne Truck Rentals Unit Trust
(U2020/11711)

COMMISSIONER BISSETT MELBOURNE, 22 SEPTEMBER 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 28 August 2020, Ms Rhiannon Burger (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 application fee or file a completed waiver form.

[3] On 31 August 2020, the Commission contacted the Applicant on her nominated telephone number to discuss payment of the required fee. The Applicant advised that she did not have the funds at the moment and would call the Commission later to make payment.

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

[5] Further attempts to contact the Applicant on her nominated telephone number were made on 8 September 2020 and 10 September 2020 to obtain payment or a completed waiver form. The Applicant did not answer the calls and voicemail messages were left advising that payment of the required fee was still outstanding and the matter was at risk of being dismissed.

[6] On 10 September 2020, the Commission contacted the Applicant’s representative by telephone to follow up on the payment of the filing fee. The Applicant’s representative advised that she had not been in contact with the Applicant and will attempt to telephone her. The Applicant’s representative advised that the Applicant lives in an area with limited mobile phone reception and emails are a more efficient way to contact the Applicant.

[7] On 10 September 2020 email correspondence was sent to the Applicant requesting payment of the filing fee or a completed waiver. The correspondence also requested that the Applicant advise if she intended to continue with her application and that failure to respond may result in her application being dismissed. No response was received.

[8] A final attempt to contact the Applicant by telephone was made by the Commission on 14 September 2020 to obtain payment or a completed waiver form. The call was not answered and a voicemail was unable to be left.

[9] On 15 September 2020 the Commission attempted to telephone the Applicant’s representative to advise that the application fee was still outstanding. The call went unanswered. A voicemail message was left explaining that the if the application fee was not paid by 16 September 2020 the matter was at risk of being dismissed. The Applicant’s Representative returned the Commission’s call on 16 September 2020 and advised that she has been unable to contact the Applicant and that she is aware the application may be dismissed for non-payment of the application fee.

[10] To date there has been no response from Ms Burger, the required fee has not been paid and a completed waiver form has not been received.

[11] Section 395 of the FW Act, which deals with application fees, provides that:

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.

[12] 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.

[13] 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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