Tiffinae McClellan v Baringa Child Care Centre Incorporated Summary

[2025] FWC 568

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Tiffinae McClellan
v

Baringa Child Care Centre Incorporated

(U2024/15529)

DEPUTY PRESIDENT EASTON

SYDNEY, 24 FEBRUARY 2025

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

On 22 December 2024, Ms Tiffinae McClellan made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The application filed by Ms McClellan 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 Ms McClellan’s application. Commission staff attempted to contact Ms McClellan on the following dates:

·   31 December 2024 by email;
·   1 January 2025 by SMS;
·   2 January 2025 by email; and
·   6 January 2025 by telephone.

Ms McClellan 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 have decided to dismiss Ms McClellan’s unfair dismissal application and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Tiffinae McClellan on 22 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tiffinae McClellan filed an unfair dismissal application against Baringa Child Care Centre Incorporated with the Fair Work Commission on 22 December 2024. The application was made under section 394 of the Fair Work Act 2009, seeking a remedy for the alleged unfair dismissal. However, the application was not in compliance with the statutory requirements as it failed to include the necessary application fee or a waiver of the fee, which is mandated by section 395 of the Act. The Fair Work Commission has the discretion to dismiss an application that does not adhere to the procedural requirements outlined in section 587(1)(a) of the Act.

The primary legal issue before the Deputy President was whether the application could be dismissed for non-compliance with the Act. The court considered the precedent set in Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, which emphasised that an applicant has the opportunity to rectify deficiencies and demonstrate why their application should not be dismissed. Despite multiple attempts by Commission staff to contact Ms McClellan to rectify the issue, she did not take any action to pay the fee or obtain a waiver. Given the ample opportunity provided to Ms McClellan to correct the procedural error and the absence of any compelling reason to excuse the non-compliance, the Deputy President decided to dismiss the application.

In dismissing the application, the Deputy President noted that Ms McClellan had been given sufficient opportunity to address the fee issue but failed to do so. The Deputy President concluded that the application did not meet the requirements of section 587(1)(a) of the Act, leading to the dismissal of the unfair dismissal application. The order made by the Deputy President was that the application under section 394 of the Fair Work Act 2009 made by Ms Tiffinae McClellan on 22 December 2024 is dismissed.

Tiffinae McClellan v Baringa Child Care Centre Incorporated

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established