Ruby King-Morrison v Reef Seafood & Sushi Brisbane Pty Ltd

[2025] FWC 41

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ruby King-Morrison
v

Reef Seafood & Sushi Brisbane Pty Ltd

(U2024/9871)

DEPUTY PRESIDENT BEAUMONT

PERTH, 6 JANUARY 2025

Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed under s.587.

On 25 August 2024, Ms Ruby King-Morrison made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

For the reasons that follow, I am satisfied that Ms King-Morrison’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.”

Ms King-Morrison’s application was incomplete because Ms King-Morrison did not pay the required fee or file a completed request to waive the fee.

Commission staff contacted Ms King-Morrison on the following dates:

·   2 September 2024 by telephone, SMS and email;
·   3 September 2024 by telephone;
·   4 September 2024 by telephone;
·   20 September 2024 by telephone;
·   2 October 2024 by email;
·   3 October 2024 by SMS; and
·   17 October 2024 by email.

On 2 September 2024, Ms King-Morrison was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application, and that failure to do so within 14 days might result in her application being dismissed. On 2 October 2024, Ms King-Morrison was also warned that the application could be dismissed if the filing fee was not paid within 7 calendar days.

To date there has been no further response from Ms King-Morrison, 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.”

Ms King-Morrison’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 Ms King-Morrison’s application.

Ms King-Morrison 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 Ms King-Morrison’s application should be dismissed.

I have separately made an order dismissing Ms King-Morrison’s application (PR783020).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Ms Ruby King-Morrison sought relief from an unfair dismissal claim against Reef Seafood & Sushi Brisbane Pty Ltd. The applicant, Ms King-Morrison, contended that her dismissal was unjust and sought remedy under section 394 of the Fair Work Act 2009. The Commission was required to determine whether the application met the formal requirements of the Act, specifically whether the requisite application fee had been paid or a waiver applied for and granted.

The primary issue before the Deputy President was whether Ms King-Morrison's application complied with the procedural prerequisites stipulated in the Fair Work Act 2009. Section 395 of the Act mandates that any application to the Fair Work Commission must be accompanied by the prescribed fee unless a waiver has been granted. The court had to assess if the applicant had fulfilled this obligation and, if not, whether the failure justified dismissal of the application under section 587 of the Act.

After examining the procedural history and communications, the Deputy President concluded that Ms King-Morrison's application did not adhere to the Act's requirements because the application fee had not been paid nor had a waiver been requested or granted. Despite multiple warnings and opportunities provided by the Commission, Ms King-Morrison did not address the fee issue. Consequently, the Deputy President exercised the discretion under section 587(1)(a) to dismiss the application for non-compliance with the Act.

The Fair Work Commission dismissed Ms King-Morrison's application for unfair dismissal under section 587 of the Fair Work Act 2009. The Deputy President issued an order dismissing the application (PR783020), reflecting the conclusion that the application was not made in accordance with the Act due to the unpaid application fee.

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