Satvinder Kaur Dhillon v Iss Health Services P/L

[2023] FWC 3082

[2023] FWC 3082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Satvinder Kaur Dhillon
v

Iss Health Services P/L

(U2023/10954)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 NOVEMBER 2023

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

1. On 7 November 2023, Mrs Satvinder Kaur Dhillon (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).

1. The application was incomplete in that Mrs Dhillon had not paid the required application fee, nor lodged a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 10 November 2023, the Commission emailed correspondence to Mrs Dhillon’s nominated email address advising that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. That correspondence also warned that if payment was not made or a Form F80 completed within 7 calendar days, her application may be dismissed. On 15 November 2023 the Commission emailed correspondence to Mrs Dhillon’s nominated email address again reminding her that her application required payment of the application fee or a completed Form F80 if she wished to proceed and warning her that her application may be a risk of dismissal.

1. On 17 November 2023, a final attempt to contact Mrs Dhillon on her nominated telephone number was made by the Commission, in order to obtain payment or a completed Form F80. The call was not answered. A voicemail message was left advising Mrs Dhillon that payment of the required fee was still outstanding. To date there has been no response from Mrs Dhillon, the required fee has not been paid and a completed Form F80 has not been received.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. 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 prospect of success.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] 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 her, the reminders and multiple requests, Mrs Dhillon has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR768593.

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<PR768592>