Stella Newham v Smak'D Pty Ltd

[2024] FWC 1229

[2024] FWC 1229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stella Newham
v

Smak’D Pty Ltd

(U2024/2789)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2024

Application for an unfair dismissal remedy

1. On 12 March 2024, Ms Stella Newham made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Act).

1. The application was incomplete in that Ms Newham did not pay the required fee nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 14 March 2024, the Commission telephoned Ms Newham to discuss the blank Form F80 that was lodged with her application. The call was not answered and a voice message was left requesting a return telephone call.  The Commission then emailed correspondence to Ms Newham’s nominated email address advising her that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. That correspondence also warned that if payment was not made or a Form F80 was not received within 7 calendar days, her application may be dismissed. Later that day, Ms Newham telephoned the Commission. The member of staff confirmed that Ms Newham could email the waiver form and asked Ms Newham to put the matter number in the subject line. Ms Newham agreed to do so.

1. On 9 April 2024, the Commission emailed correspondence to Ms Newham’s nominated email address reminding her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application. That correspondence also warned Ms Newham that if payment was not made or a completed Form F80 was not received, her application may be dismissed. 

1. A final attempt to contact Ms Newham on her nominated telephone number was made by the Commission on 11 April 2024 to obtain payment or a completed Form F80. The call was not answered. A voicemail message was left advising Ms Newham that payment of the required fee was still outstanding. Payment or lodgement of a completed Form F80 was requested by close of business on Friday 12 April 2024. It was advised that the matter may otherwise be dismissed without further notice.

1. To date there has been no response from Ms Newham, 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 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 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 reminders and multiple requests, Ms Newham has not paid the application fee. In these circumstances, I am satisfied that it is appropriate 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] PR774895.

Printed by authority of the Commonwealth Government Printer

<PR774893>