Senitta Cady v Care Coordinated Services

[2023] FWC 1661

[2023] FWC 1661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Senitta Cady
v

Care Coordinated Services

(U2023/4690)

COMMISSIONER BISSETT MELBOURNE, 11 JULY 2023

Application for an unfair dismissal remedy

1. On 29 May 2023 Senitta Cady (the 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 the Applicant did not pay the required fee or file a completed waiver form.

1. On 1 June 2023, the Commission attempted to contact the Applicant on their nominated telephone number to notify the Applicant that, further to the lodgement of their Form F2, a document which related to the Applicant’s final pay out was attached as a waiver as opposed to a completed fee waiver form.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that their 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 was not made or a waiver form was not received by 15 May 2023, the application may be dismissed.

1. On 14 June 2023, the Commission attempted to contact the Applicant on their nominated telephone number to obtain payment or a completed waiver form. As the call was not answered, a voice message was left advising the Applicant to either make payment of the filing fee or to provide a completed waiver application.

1. Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. The email further stated:

Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

…

If you don’t make payment within 7 days your application may be dismissed.

1. On 20 June 2023, the Commission attempted to contact the Applicant on their nominated telephone number to obtain payment or a completed waiver form. As the call was not answered, a voice message was left advising the Applicant to either make the necessary payment of the filing fee or provide a completed waiver application.

1. On 22 June 2023, the Commission attempted to contact the Applicant on their nominated telephone number to obtain payment or a completed waiver form and to advise the Applicant that a document relating to their final pay out was attached as a waiver application. As the call was not answered, a voice message was left advising the Applicant to either make the necessary payment of the filing fee or provide a completed waiver application.

1. To date the Applicant has not paid the required fee or completed a waiver form.

1. 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

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. 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.

COMMISSIONER
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