Samantha Brooks v Beacon Co-Operative Ltd Summary

[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

CaseChat Overview and Summary

Ms Samantha Brooks sought a remedy for unfair dismissal against her former employer, Beacon Co-Operative Ltd, under section 394 of the Fair Work Act 2009. Her application was incomplete as it did not include the required application fee or a completed Form F80 – Application for waiver of the application fee. Despite multiple communications from the Fair Work Commission advising her of the deficiencies and the consequences of not rectifying them, Ms Brooks did not take the necessary steps to complete her application. The Commission, in the exercise of its discretion under section 587 of the Fair Work Act, found that the application was not made in accordance with the Act and dismissed the application for being non-compliant. The Deputy President concluded that the application was effectively invalid due to the failure to meet the statutory requirements and thus there was no valid application before the Commission. An order dismissing the application was issued.

The central legal issue before the Court was whether the application for an unfair dismissal remedy was properly made in accordance with the Fair Work Act. Specifically, the Court had to determine whether the application was compliant with the requirements set out in sections 395 and 587 of the Act. Section 395 of the Act mandates that an application for an unfair dismissal remedy must be accompanied by the prescribed fee or a completed Form F80 if a waiver is sought. Section 587 of the Act provides the Fair Work Commission with the discretion to dismiss an application if it is not made in accordance with the Act, among other things. The Court found that the application was not compliant because it did not include the required fee or a completed waiver form, despite multiple reminders from the Commission. Given the non-compliance, the Court exercised its discretion to dismiss the application.

In reaching its decision, the Fair Work Commission noted that section 395 of the Fair Work Act explicitly requires the prescribed fee or a completed Form F80 for an application to be valid. The Court observed that Ms Brooks had been given numerous opportunities to rectify the deficiencies in her application but had failed to do so. The Court held that the absence of the fee payment or a completed waiver form meant that the application was not made in accordance with the Act. This non-compliance directly fell within the scope of section 587(1)(a) of the Act, which allows for the dismissal of an application that is not made in accordance with the Act. Given the clear statutory requirements and the failure to meet them, the Court found it appropriate to dismiss the application. The Court issued an order dismissing the application and noted that no further action was required.

The Fair Work Commission issued an order dismissing Ms Samantha Brooks' application for an unfair dismissal remedy. The Court found that the application was not made in accordance with the Fair Work Act due to the failure to include the prescribed application fee or a completed Form F80. Despite multiple reminders and communications, Ms Brooks did not rectify the deficiencies in her application. The Court concluded that the application was effectively invalid and exercised its discretion under section 587 of the Act to dismiss the application. The order dismissing the application was issued, and no further action was required.

Samantha Brooks v Beacon Co-Operative Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established