Samantha McRae v Department of Education and Training Victoria/Ascot Vale Heights School

[2025] FWC 426

[2025] FWC 426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samantha McRae
v

Department Of Education And Training Victoria/Ascot Vale Heights School

(U2024/14583)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 FEBRUARY 2025

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

1. Ms Samantha McRae lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 5 December 2024.

1. The application was incomplete in that Ms McRae did not specify the date her alleged dismissal took effect, as required by the Form F2 – Unfair Dismissal Application (Form F2).

1. On 9 December 2024, the Commission attempted to contact Ms McRae on her nominated telephone number to discuss the incomplete application. The call was not answered, and a voicemail message could not be left as Ms McRae’s voicemail mailbox was full. Email correspondence was sent to Ms McRae stating that her application was incomplete and requesting that she provide the effective date of dismissal by 23 December 2024. The correspondence also warned that if the missing information was not provided, her application may be dismissed. A text message was also sent to Ms McRae’s nominated telephone number advising that there was a problem with her application and requesting that she call the Commission.

1. On 2 January 2025, the Commission attempted to contact Ms McRae on her nominated telephone number to discuss concerns that her application may have been made after the 21-day time limit imposed for unfair dismissal applications, and to ask further questions about answers she had provided in her Form F80 – Application for waiver of the application fee (Form F80). However, the call was not answered, and no voicemail message could be left as Ms McRae’s voicemail mailbox was full.

1. A final attempt to contact Ms McRae was made by the Commission by telephone on 7 January 2025 to follow up on the incomplete application and to confirm the effective date of dismissal. Ms McRae could not be reached, and no voicemail message could be left as her voicemail mailbox was full.

1. To date, there has been no response from Ms McRae and the application remains incomplete.

1. Section 587 of the Act relevantly 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.”

1. The material before the Commission indicates that the relevant application form was incomplete, in that it does not state Ms McRae’s effective date of dismissal. In addition, the Form F80 is incomplete, and no application fee has been paid. In these circumstances, I am satisfied that the application has not been made in accordance with the Act. Given the Applicant did not specify her effective date of dismissal in the Form F2 and has not adequately addressed the question of her application fee, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact Ms McRae, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR784315.

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