Teagan Ardler v Harris Scarfe Australia Pty Ltd

[2023] FWC 2741

[2023] FWC 2741

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Teagan Ardler
v

Harris Scarfe Australia Pty Ltd

(U2023/9067)

COMMISSIONER BISSETT MELBOURNE, 19 OCTOBER 2023

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

1. On 19 September 2023 Teagan Ardler (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 the Applicant did not pay the required fee after a request for a fee waiver was refused.

1. On 26 September 2023 the Commission emailed correspondence to the Applicant’s nominated email address advising that her request to have the filing fee waived was refused and that payment of the filing fee was required if she wished to proceed with the application. That correspondence also warned that if payment was not made within 14 calendar days the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number asking her to call the Commission.

1. On 27 September 2023 the Commission attempted to contact the Applicant on her nominated telephone number. The call was not answered. A voicemail message was left advising the Applicant that payment of the filing fee was required by 10 October 2023 and that if payment was not received by this date, the application may be dismissed.

1. On 2 October 2023 the Commission emailed correspondence to the Applicant’s nominated email address reminding her that her application required payment of the filing fee if she wished to proceed with the application. That correspondence also warned that if payment was not made, the application may be dismissed.

1. A final attempt to contact the Applicant on her nominated telephone number was made by the Commission on 6 October 2023 to obtain payment. The call was not answered. A voicemail message was left advising the Applicant that the fee waiver had been refused and payment must be made by 10 October 2023. The Applicant was asked to contact the Commission and advise whether she would like to discontinue her application or proceed with payment. She was advised that if no instructions were received by 10 October 2023, her matter may be dismissed and a decision published on the Commission website.

1. To date there has been no response from the Applicant and the required fee has not been paid.

1. 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.

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

COMMISSIONER
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