Shanay Kreis v National Patient Transport (Nsw) Pty Ltd Summary

[2023] FWC 34

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shanay Kreis
v

National Patient Transport (Nsw) Pty Ltd

(U2022/11791)

COMMISSIONER BISSETT

MELBOURNE, 5 JANUARY 2023

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

On 12 December 2022 Ms Shanay Kreis 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 Ms Kreis did not pay the required fee or file a completed waiver form.

On 14 December 2022 the Commission emailed correspondence to Ms Kreis’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 7 calendar days the application may be dismissed. An SMS notification was also sent to Ms Kreis’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

A final attempt to contact Ms Kreis on her nominated telephone number was made by the Commission on 30 December 2022 to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising Ms Kreis to contact the Commission.

To date there has been no response from Ms Kreis, the required fee has not been paid and a completed waiver form has not been received.

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.

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.

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, I order that the application is dismissed pursuant to s.587(1)(a) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

Shanay Kreis lodged an application for unfair dismissal against her former employer, National Patient Transport (NSW) Pty Ltd, with the Fair Work Commission (FWC). The application was dismissed by the FWC as it was incomplete, lacking the requisite fee and a completed waiver form. The Commission made several attempts to contact Ms Kreis to rectify the application, but these attempts were unsuccessful. The matter was ultimately dismissed by the Commission under its own initiative pursuant to section 587(1)(a) of the Fair Work Act 2009, as the application did not comply with the Act. Commissioner Bissett was tasked with determining the appropriate legal issues arising from this case, including whether the application was compliant with the requirements of the Act, and if it had reasonable prospects of success. The Commissioner found that the application was not made in accordance with the Act and, as such, was dismissed.

The central issue before the Commissioner was whether the application for unfair dismissal complied with the requirements of the Fair Work Act 2009, specifically section 395, which mandates the payment of a prescribed fee. The Commissioner also considered whether the application had reasonable prospects of success. The Commissioner concluded that the application did not meet the requirements of the Act as it was not accompanied by the necessary fee, and therefore, the application was not made in accordance with the Act. The Commissioner found that the application was not frivolous or vexatious but dismissed it due to the lack of compliance with the statutory requirements. The Commissioner also noted that there was no response from Ms Kreis despite multiple attempts to contact her to rectify the application. Consequently, the application was dismissed under section 587(1)(a) of the Fair Work Act 2009.

Shanay Kreis v National Patient Transport (Nsw) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established