Sandra Miller v Ventia Summary

[2022] FWC 716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sandra Miller
v
Ventia

(U2022/2590)

cOMMISSIONER bISSETT

MELBOURNE, 31 MARCH 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

On 1 March 2022, Ms Sandra Miller (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).

The application was incomplete in that it did not include payment of the required fee or a completed fee waiver form.

On 1 March 2022, the Commission telephoned the Applicant to discuss payment of the required fee. The Applicant advised she was not aware of a filing fee and that she will complete a fee waiver form.

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 waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to the Applicant’s representative advising that there was a problem with the application and requesting a return call. No response was received from the Applicant’s representative.

On 16 March 2022, the Commission telephoned the Applicant and advised that the Commission had not as yet received a completed fee waiver form from her. The Applicant said that she may have accidentally deleted the email from the Commission attaching the fee waiver form and requested the form be resent to her. The Commission advised the Applicant that it will resend the form and warned that if the fee waiver form is not received by close of business on 18 March 2022 the application may be dismissed.

To date the required fee has not been paid and a completed fee waiver form has not been received.

Section 395 of the 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.

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.

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

[1] PR739878

Printed by authority of the Commonwealth Government Printer

Sandra Miller, an employee, applied to the Fair Work Commission (FWC) for a remedy for unfair dismissal under the Fair Work Act 2009. Ventia, Miller's former employer, was the respondent. Miller's application was incomplete because it did not include payment of the required fee or a completed fee waiver form. The FWC attempted to contact Miller to inform her of the missing fee and provide her with a deadline to rectify the issue. Despite multiple attempts to contact Miller, the required fee was not paid, and a completed fee waiver form was not received. As a result, the FWC dismissed Miller's application under section 587(1)(a) of the Fair Work Act 2009 for not being made in accordance with the Act.

The legal issues in this case were whether the application met the requirements of the Fair Work Act 2009 and whether the FWC had the authority to dismiss the application for non-compliance. The primary issue was whether the FWC could dismiss an application for not being made in accordance with the Act due to the absence of the required fee or a completed fee waiver form. The FWC determined that the application did not meet the requirements of the Act because it lacked the prescribed fee, and therefore, the application was dismissed.

The FWC found that Miller's application did not comply with the requirements of the Fair Work Act 2009 as it did not include the prescribed fee or a completed fee waiver form. The FWC had warned Miller of the need to provide the missing information or fee within a specified deadline, but she failed to do so. The FWC concluded that the application was not made in accordance with the Act and therefore dismissed it under section 587(1)(a) of the Fair Work Act 2009. The FWC emphasised that it had the authority to dismiss an application if it was not made in accordance with the Act, and in this case, the absence of the required fee or a completed fee waiver form constituted non-compliance.

The FWC dismissed Sandra Miller's application for a remedy for unfair dismissal. The dismissal was based on the application's non-compliance with the Fair Work Act 2009 due to the absence of the required fee or a completed fee waiver form. An order to this effect will be issued shortly.

Sandra Miller v Ventia

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established