Simmone Kovacicek v Pacific Automotive Holdings Pty Limited

[2024] FWC 1521

[2024] FWC 1521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Simmone Kovacicek
v

Pacific Automotive Holdings Pty Limited

(U2024/5033)

DEPUTY PRESIDENT EASTON SYDNEY, 14 JUNE 2024

Application for an unfair dismissal remedy

1. On 2 May 2024 Mrs Simmone Kovacicek made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth). The application was incomplete because Mrs Kovacicek did not pay the required fee or file a completed waiver form.

1. On 8 May 2024 the Commission emailed correspondence to Mrs Kovacicek’s nominated email address advising that she must pay the filing fee or apply for a waiver if she wanted to proceed with the application. Mrs Kovacicek was also warned that if the filing fee was not paid within 7 calendar days the application could be dismissed. On 9 May 2024 an SMS notification was also sent to Mrs Kovacicek advising of the requirement to action the payment request email from the Fair Work Commission.

1. On 14 May 2024 the Commission emailed correspondence to Mrs Kovacicek reminding her that the application required payment of the filing fee or a completed waiver form if she wanted to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received, the application may be dismissed.

1. On 14 May 2024 the Commission attempted to contact Mrs Kovacicek by telephone. A voicemail was left requesting urgent payment. A message was also left with Mrs Kovacicek’s Representative’s receptionist regarding urgent need for payment.

1. On 16 May 2024 the Commission again attempted to contact Mrs Kovacicek’s Representative regarding payment. The Representative advised he had not been able to contact Mrs Kovacicek and was therefore unable to attend to this request.

1. On 16 May 2024, the Commission made a final attempt to contact Mrs Kovacicek by telephone. Mrs Kovacicek did not answer and a voicemail message was left advising her that payment of the required fee was still outstanding.

1. On 30 May 2024, the Commission made a final attempt to contact Mrs Kovacicek’s Representative. As he was unavailable, a message was left with the reception staff to have him contact the Commission urgently.

1. On 31 May 2024, a form F54 was received from the Applicant’s Representative, advising they have ceased to act for the Applicant.

1. To date there has been no response from Mrs Kovacicek, the required fee has not been paid and a completed waiver form 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.

1. Section 587 of the 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 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.

1. Mrs Kovacicek’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mrs Kovacicek’s application.

1. I am satisfied that Mrs Kovacicek’s application should be dismissed. Mrs Kovacicek and her representative have been given ample opportunity to rectify the deficiency in the application. The Commission’s inquiries, requests and warnings have largely been ignored.

1. I have separately made an order to this effect (PR775891).

DEPUTY PRESIDENT

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