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

[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

[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

Printed by authority of the Commonwealth Government Printer

1 PR735225

In the matter of Samantha Manicaros versus Lululemon, the Federal Court was called upon to adjudicate on an application for unfair dismissal remedy, where the primary issue was the failure to pay the requisite filing fee. The dismissal had occurred under section 587 of the Fair Work Act, initiated by the Fair Work Commission. The applicant, Manicaros, sought redress for what she contended was an unjust termination of employment, while Lululemon argued that the dismissal was justified due to procedural oversights on Manicaros’ part.

The court was tasked with determining whether the dismissal was indeed unfair, considering the procedural lapses. Central to the court's consideration was whether the failure to pay the filing fee was a critical procedural defect that warranted the dismissal being set aside. Additionally, the court had to evaluate if the dismissal was just, despite the procedural error, by assessing the merits of the dismissal as per the Fair Work Act. The court also needed to decide whether the Commission's decision to dismiss the case without the filing fee was in accordance with the law.

The Federal Court held that the failure to pay the filing fee was a substantial procedural defect, but it did not automatically render the dismissal unfair. The court found that the dismissal was justified in this instance because the procedural error had a significant impact on the Commission's ability to properly consider the merits of the case. The court emphasised that while procedural fairness is crucial, it must be balanced against the substantive rights of the parties. Consequently, the court upheld the dismissal, affirming the Commission's decision and dismissing the application for unfair dismissal remedy.

Samantha Manicaros v Lululemon

DECISION

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