Aileen Atkinson v Yappera Children’s Service Cooperative Ltd [2024] FWC 2875

1 Fair Work Act 2009 s.394—Unfair dismissal Aileen Atkinson v Yappera Children’s Service Cooperative Ltd (U2024/10920) DEPUTY PRESIDENT CLANCY MELBOURNE, 16 OCTOBER 2024 Application for relief from unfair dismissal – dismissal under s.587 at the Commission’s initiative. [1] Ms Aileen Atkinson lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 16 September 2024. [2] The application was incomplete in that Ms Atkinson did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80). [3] On 19 September 2024, the Commission emailed correspondence to Ms Atkinson’s nominated email address informing her that payment of the application fee or a completed Form F80 was required for the Commission to progress her unfair dismissal application. That correspondence warned Ms Atkinson that if payment was not made or a Form F80 was not received within 7 calendar days, her unfair dismissal application may be dismissed. [4] On 20 September 2024, the Commission sent an SMS request to Ms Atkinson’s nominated telephone number requesting her to pay the application fee in relation to her unfair dismissal application. [5] On 24 September 2024, the Commission emailed correspondence to Ms Atkinson’s nominated email address, reminding her that her application required payment of the application fee or a completed Form F80. That correspondence also warned that if payment was not made or a Form F80 was not received, her application may be dismissed. [6] A final attempt to contact Ms Atkinson was made by the Commission by telephone on 26 September 2024 to follow up on the outstanding application fee. Ms Atkinson could not be reached, and a voicemail message was left requesting Ms Atkinson to make the required payment and warning her that her matter was at risk of being dismissed if payment was not received by 27 September 2024. The voicemail message informed Ms Atkinson that she could call the Commission and then make the payment or ask any further questions. [2024] FWC 2875 DECISION -- 1 of 3 -- [2024] FWC 2875 2 [7] To date, there has been no response from Ms Atkinson, the required fee has not been paid and a completed Form F80 has not been received. [8] Section 395 of the 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.” (bold text in the original) [9] In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application. [10] Section 587 of the Act relevantly 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 prospects of success. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A. … (3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application.” (bold text in the original) [11] The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Ms Atkinson has not lodged a completed Form F80. -- 2 of 3 -- [2024] FWC 2875 3 I am satisfied that 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 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 Ms Atkinson, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order1 to this effect will be issued with this decision. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR780314> 1 PR780315. -- 3 of 3 --