Tahlia Muller v Sentinel Community Services Pty Ltd

[2023] FWC 3335

[2023] FWC 3335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tahlia Muller
v

Sentinel Community Services Pty Ltd

(U2023/11413)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 DECEMBER 2023

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

1. On 17 November 2023, Ms Tahlia Muller, (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 Ms Muller had not signed the Form F2 - Application for an unfair dismissal remedy (Form F2), nor paid the required application fee, or lodged a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 22 November 2023, the Commission attempted to contact Ms Muller on her nominated telephone number. A voicemail message was left requesting that Ms Muller call the Commission back. Later that day, the Commission emailed correspondence to the Ms Muller’s nominated email address advising her that her application was not signed and dated properly and that she must provide a complete application by 6 December 2023 otherwise her application may be dismissed. An SMS notification was also sent to Ms Muller’s nominated telephone number requesting that she call the Commission regarding her incomplete application.

1. On 24 November 2023 the Commission emailed correspondence to Ms Muller’s nominated email address reminding her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application.

1. On 28 November 2023, a final attempt to contact Ms Muller on her nominated telephone number was made by the Commission in order to obtain payment or a completed Form F80. Ms Muller did not answer the call. A voicemail message was sent advising that payment of the application fee was still outstanding. Ms Muller was further advised that she would need to pay the application fee or complete a Form F80 by the end of Wednesday, 29 November 2023. To date there has been no response from Ms Muller, 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 FW 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 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. 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 attempts by the Commission to contact her, the reminders and multiple requests, Ms Muller has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances 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]  PR769387.

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