Sarah Najjar v Fernwood Womens Health Clubs Pty. Ltd

[2024] FWC 3216

[2024] FWC 3216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sarah Najjar
v

Fernwood Womens Health Clubs Pty. Ltd.

(U2024/10978)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 NOVEMBER 2024

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

1. Mrs Sarah Najjar lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 14 September 2024.

1. The application was incomplete in that Mrs Najjar did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80).

1. On 19 September 2024, the Commission attempted to contact Mrs Najjar on her nominated telephone number. However, the call was not answered, and a voicemail message was left requesting Mrs Najjar to call back or to file a completed Form F80.

1. Shortly afterwards on the same day, the Commission emailed correspondence to Mrs Najjar’s nominated email address informing her that she did not complete all questions on a Form F80 filed in the Commission and that a completed Form F80 was required for the Commission to progress her unfair dismissal application. That correspondence warned Mrs Najjar that if the Commission did not receive a completed Form F80 within 14 calendar days, her unfair dismissal application may be dismissed.

1. Later the same day, the Commission also sent a SMS request to Mrs Najjar’s nominated telephone number informing her there was a problem with her unfair dismissal application and requesting her to contact the Commission.

1. A final attempt to contact Mrs Najjar was made by the Commission by telephone on 4 October 2024 to follow up on the outstanding complete Form F80. Mrs Najjar could not be reached, and a voicemail message was left requesting Mrs Najjar to file a completed Form F80 and warning her that the matter was otherwise at risk of being dismissed if a completed Form F80 was not received by close of business on 8 October 2024.

1. To date, there has been no response from Mrs Najjar, the required fee has not been paid and a completed Form F80 has not been received.

1. 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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Mrs Najjar has not lodged a completed Form F80. I am satisfied that the application has not been made in accordance with the Act. Given the absence of the fee payment or a completed Form F80, 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 multiple attempts by the Commission to contact Mrs Najjar, 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] PR781484.

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