Shelby Thomasson v The Trustee for Total Fusion Mt Gravatt Unit Trust T/A Total Fusion

[2019] FWC 5639

[2019] FWC 5639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shelby Thomasson
v
The Trustee for Total Fusion Mt Gravatt Unit Trust T/A Total Fusion
(U2019/7612)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 11 July 2019, Ms Shelby Thomasson made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Thomasson’s application was accompanied by a payment waiver application form.

[2] On 12 July 2019, the Commission attempted to telephone Ms Thomasson and left a voicemail message advising that her application for a payment waiver had been refused and that she was required to make payment of the application fee if she wished to proceed with her unfair dismissal application. The Commission’s records indicate that Ms Thomasson returned the Commission’s call shortly after to query why her application for a payment waiver had been refused and declined to make the payment of the application fee at the time of the call.

[3] Following Ms Thomasson’s telephone call, the Commission emailed her correspondence confirming that the application for a payment waiver had been refused and seeking payment of the application fee. The correspondence warned that if the application fee was not paid within 14 days, Ms Thomasson’s unfair dismissal application may be dismissed.

[4] On 2 August 2019, the Commission attempted to telephone Ms Thomasson in relation to payment of her application fee. Ms Thomasson was unable to be reached so a voicemail message was left seeking her return call within four days and warning that her application may be dismissed if the application fee remained unpaid.

[5] The Commission attempted a final call to Ms Thomasson on 7 August 2019. Ms Thomasson did not answer the call. A voicemail message was left urging Ms Thomasson to telephone the Commission to pay her application fee.

[6] To date, since advising Ms Thomasson that her application for a payment waiver had been refused on 12 July 2019, no response from Ms Thomasson has been received and the application fee has not been paid.

[7] Section 395 of the Act, which deals with application fees, provides:

“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.”

[8] Section 587(1) of the Act provides:

“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.”

[9] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Ms Thomasson has failed to file a completed application and has not paid the required fee. As such, Ms Thomasson’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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