Vikki Chadwick v Town of Port Hedland
[2023] FWC 377
•16 FEBRUARY 2023
| [2023] FWC 377 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Vikki Chadwick
v
Town Of Port Hedland
(U2023/468)
| COMMISSIONER BISSETT | MELBOURNE, 16 FEBRUARY 2023 |
Application for an unfair dismissal remedy
On 19 January 2023 Mrs Vikki Chadwick 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).
The application was incomplete in that Mrs Chadwick did not pay the required fee or file a completed waiver form. A question also arose as to whether the Town of Port Hedland was a national system employer.
On 20 January 2023 the Commission contacted Mrs Chadwick on her nominated telephone number. Mrs Chadwick explained that she had received conflicting legal advice regarding whether the Commission has the jurisdiction to determine her application for unfair dismissal. Mrs Chadwick was provided with contact details for independent advice.
Later that day the Commission emailed correspondence to Mrs Chadwick’s nominated email address advising that, based on the information contained in the application, the Town of Port Hedland may not be a national system employer and to urgently seek further advice on this issue, as the Commission may not have jurisdiction to deal with her application. The correspondence also required Mrs Chadwick to advise the Commission within 14 days whether she wished to proceed with her application. The correspondence warned that the application may be dismissed if no response was received.
As the required information was not received, on 1 February 2023 the Commission contacted Mrs Chadwick on her nominated telephone number. Mrs Chadwick informed the Commission that she had obtained legal representation and that her representative may have filed an application with the Western Australian Industrial Relations Commission on her behalf. Mrs Chadwick advised that she would contact her representative for clarification and inform the Fair Work Commission as to whether she would proceed with her unfair dismissal application. The Commission advised that if Mrs Chadwick wished to continue with her application, payment of the filing fee or a completed waiver form would be required.
As Mrs Chadwick had not otherwise discontinued her application, a final attempt to contact her was made by the Commission on 3 February 2023 to obtain payment or a completed waiver form. Mrs Chadwick advised that she was unsure whether to proceed with the unfair dismissal application. She was advised that she needed to advise the Commission of her intention by the end of the day. The Commission also reminded Mrs Chadwick that payment of the filing fee or a fee waiver form would be required if she wished to proceed with her unfair dismissal application.
To date Mrs Chadwick has not paid the required fee or completed a waiver form.
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.
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.
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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