Sally Dickson-Dent v LCA Gungahlin Pty Limited

[2024] FWC 2547

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sally Dickson-Dent
v

LCA Gungahlin Pty Limited

(U2024/7686)

DEPUTY PRESIDENT EASTON

SYDNEY, 17 SEPTEMBER 2024

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

On 3 July 2024 Ms Sally Dickson-Dent made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

For the following reasons I am satisfied that Ms Dickson-Dent’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 Dickson-Dent’s application was incomplete because Ms Dickson-Dent did not pay the required fee or file a completed request to waive the fee.

Commission staff contacted Ms Dickson-Dent on the following dates:

· 8 July by telephone, email and SMS; and
· 22 July 2024 by telephone.

Ms Dickson-Dent was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application. Ms Dickson-Dent was also warned that the application could be dismissed if the filing fee was not paid.

To date there has been no response from Ms Dickson-Dent, no fee paid and no waiver request received.

Section 587 of the 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.

…

(3)       The FWC may dismiss an application:
(a)       on its own initiative; or
(b)       on application.”

Ms Dickson-Dent’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 Dickson-Dent’s application.

Ms Dickson-Dent 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 Dickson-Dent’s application should be dismissed.

I have separately made an order dismissing Ms Dickson-Dent’s application (PR779347).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, Sally Dickson-Dent applied to the Fair Work Commission for a remedy for unfair dismissal against her former employer, LCA Gungahlin Pty Limited. The application was dismissed as it was incomplete due to the failure to pay the required filing fee or file a waiver request, as mandated by the Fair Work Act 2009. The Deputy President of the Commission, Easton, was tasked with deciding whether the application should be dismissed under section 587 of the Act.

The key legal issue before the court was whether the application complied with the statutory requirements of the Fair Work Act. Specifically, the court had to determine if the application was made in accordance with the Act, given that section 395 of the Act requires the payment of a prescribed fee or a waiver request. The applicant, Ms Dickson-Dent, had not complied with this requirement, and despite warnings from the Commission staff, she did not address the deficiency. The court also considered whether the dismissal of the application was appropriate under section 587(1)(a) of the Act.

The court found that Ms Dickson-Dent's application was not made in accordance with the Act as required by section 395, and therefore, it was appropriate to dismiss the application under section 587(1)(a). The court noted that Ms Dickson-Dent had been given multiple opportunities to rectify the fee payment issue, but she failed to respond or take any action. The court referenced previous cases, such as Bond v Carbridge Pty Ltd, which similarly involved dismissals for non-compliance with procedural requirements. The court concluded that the application should be dismissed and issued an order to that effect.

In summary, the court dismissed Ms Dickson-Dent's application for unfair dismissal due to her failure to pay the required filing fee or file a waiver request as stipulated by the Fair Work Act. The court exercised its discretion under section 587 of the Act and dismissed the application on the basis that it was not made in accordance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established