Samantha Brooks v Beacon Co-Operative Ltd
[2024] FWC 819
•2 APRIL 2024
| [2024] FWC 819 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samantha Brooks
v
Beacon Co-Operative Ltd
(U2024/1296)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 2 APRIL 2024 |
Application for an unfair dismissal remedy
On 7 February 2024, Ms Samantha Brooks 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).
The application was incomplete in that Ms Brooks did not pay the required application fee, nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).
On 8 February 2024, the Commission emailed two pieces of correspondence to Ms Brooks’ nominated email address advising her that the Form F80 she filed was blank and that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application. The correspondence also warned that if payment was not made or a waiver form was not received within 7 calendar days her application may be dismissed. On 9 February 2024, an SMS notification was also sent to Ms Brooks’ nominated telephone number advising her of the requirement to action the payment request email from the Commission.
On 14 February 2024 the Commission emailed correspondence to Ms Brooks’ nominated email address reminding her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with the application. That correspondence also warned Ms Brooks that if payment was not made or a Form F80 was not received, her application may be dismissed.
A final attempt to contact Ms Brooks on her nominated telephone number was made by the Commission on 28 February 2024. The call was not answered and there was no facility to record a voicemail message. To date Ms Brooks has not paid the required application fee or completed a Form F80.
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.
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.
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, Ms Brooks has not paid the application fee, nor completed a Form F80. 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] PR772901.
Printed by authority of the Commonwealth Government Printer
<PR772900>
0
0
0