Said Malouf v Adelaide Structural Engineers Pty Ltd

[2024] FWC 1252

[2024] FWC 1252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Said Malouf
v

Adelaide Structural Engineers Pty Ltd

(U2024/4194)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MAY 2024

Application for an unfair dismissal remedy

1. On 10 April 2024, Mrs Said Malouf 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).

1. The application was incomplete in that Mrs Malouf did not pay the required application fee, nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 16 and 19 April 2024, the Commission emailed correspondence to the email provided for Mrs Malouf’s representative (O’Dea Lawyers), who had been nominated as payer on Mrs Malouf’s application. The email advised that Mrs Malouf’s application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. That correspondence also warned that if payment was not made, or a Form F80 was not received, her application may be dismissed.

1. On 23 April 2024, the Commission attempted to contact Mrs Malouf’s representative on the nominated telephone number. The call was not answered. A voicemail message was left advising Mrs Malouf’s representative that payment of the required fee was still outstanding and if not paid within 3 Business days Mrs Malouf’s application may be dismissed.

1. On 29 April 2024, the Commission made a final attempt to contact Mrs Malouf’s representative on the nominated telephone number. The call was not answered. A voicemail message was left advising Mrs Malouf’s representative that payment of the required fee was still outstanding and if not paid by the end of the day Mrs Malouf’s application may be dismissed. The Commission also made an attempt to contact Mrs Malouf directly on her nominated telephone number. The call was not answered. A voicemail message was left advising Mrs Malouf that payment of the required fee was still outstanding and if not paid by the end of day her application may be dismissed. To date there has been no response, either from Mrs Malouf or her representative, the required fee has not been paid, and a Form F80 has not been received.

2. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. 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 prospect of success.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the reminders and multiple requests to Mrs Malouf and her representative, the required fee has not been paid. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR774967.

Printed by authority of the Commonwealth Government Printer

<PR774966>