Samantha Manicaros v Lululemon

[2021] FWC 6201

[2021] FWC 6201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samantha Manicaros
v
Lululemon
(U2021/8298)

COMMISSIONER BISSETT MELBOURNE, 26 OCTOBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 14 September 2021, Ms Samantha Manicaros (Applicant) 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).

[2] The application was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] On the 17 September 2021, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment however the Applicant did not answer the call. A voicemail message was left advising that payment of the application fee was still outstanding and requesting the Applicant to return the Commission’s call.

[4] Later that day the Commission emailed correspondence to the Applicant’s nominated email address advising that her application required payment of the filing fee or a completed fee waiver form if she wished to proceed with her application. The correspondence also warned that if the Applicant did not pay the application fee or make an application to have the fee waived within 14 days her application may be dismissed. Correspondence was also sent to the Applicant’s representative, Hardings Gulhane Solicitors, to this effect.

[5] On 30 September 2021 the Commission made a final attempt to contact the Applicant on her nominated telephone number to obtain payment or a completed fee waiver form. The call was not answered and a voicemail message was left advising the Applicant that her application was at risk of being dismissed if payment or a completed fee waiver form was not received. The Commission also attempted to contact the Applicant’s representative by telephone to follow up on payment. As the Applicant’s representative was unavailable a detailed message was left with the Receptionist advising that payment of the required filing fee was still outstanding and that the matter was at risk of being dismissed. The Receptionist advised that she would pass the message on to the Applicant’s representative.

[6] To date there has been no response from the Applicant nor her representative, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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.

[8] Section 587(1) of the FW Act provides:

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.

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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