Teresa Kahaki v Pindari WA Pty Ltd

[2025] FWC 918

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Teresa Kahaki
v

Pindari WA Pty Ltd

(U2024/15060)

DEPUTY PRESIDENT EASTON

SYDNEY, 1 APRIL 2025

Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed.

On 6 December 2024, Ms Teresa Kahaki made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Ms Kahaki’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.

Commission staff attempted to contact Ms Kahaki on 18, 19, 20 and 24 December 2024, 7 and 11 February 2025 by telephone, SMS and email.

Ms Kahaki responded on 11 February 2025 and requested another copy of the waiver application form, which was provided on the same day.

Since then Ms Kahaki has not been in contact with the Commission.

Section 587 confers a discretion on the Commission to dismiss Ms Kahaki’s application if it has not been made in accordance with the Act. Ms Kahaki has had ample opportunity to rectify the deficiency in her application and has had ample opportunity to show why her application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Teresa Kahaki on 6 December 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Teresa Kahaki filed an unfair dismissal claim against Pindari WA Pty Ltd under section 394 of the Fair Work Act 2009. The application was dismissed by Deputy President Easton of the Fair Work Commission on 1 April 2025. The dismissal was due to the applicant's failure to pay the prescribed application fee or obtain a waiver, as required by section 587(1)(a) of the Act. Despite multiple attempts by the Commission to contact Ms Kahaki and provide her with the necessary forms to rectify the situation, she did not take the required steps to properly lodge her application.

The central legal issue was whether the Commission had the discretion to dismiss Ms Kahaki's application for non-compliance with the statutory requirements, particularly the failure to pay the application fee or seek a waiver. The Deputy President considered precedents, such as Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, which held that the Commission can dismiss an application if it has not been made in accordance with the Act. Given the ample opportunity provided to Ms Kahaki to correct her application, the Deputy President concluded that dismissal was warranted.

In dismissing the application, Deputy President Easton noted that Ms Kahaki had been given sufficient chances to address the deficiency in her application. The failure to pay the fee or seek a waiver, despite being informed of the requirement and provided with the necessary forms, justified the exercise of the Commission's discretion under section 587. The Deputy President ultimately dismissed Ms Kahaki's application, finding that it was not made in accordance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established