1
Fair Work
Act 2009
s.394—Unfair dismissal
Rachael McNicol
v
4lifeskills Inc.
(U2021/9312)
COMMISSIONER BISSETT MELBOURNE, 10 NOVEMBER 2021
Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at
the Commission’s initiative.
[1] On 19 October 2021, Ms Rachael McNicol (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).
[2] The application was incomplete in that the Applicant did not pay the required fee or file
a completed fee waiver form.
[3] On 20 October 2021, the Commission contacted the Applicant’s Representative at
Employee Dismissals to discuss payment of the required fee. Ms Tashalia answered the call
and advised that she would call the Commission later to make payment.
[4] Later that day, the Commission emailed correspondence to the Applicant and her
Representative’s nominated email address advising that the application required payment of the
filing fee or a completed fee waiver form if the Applicant wished to proceed with the
application. That correspondence also warned that if payment is not made or a fee waiver form
is not received within 14 days, the application may be dismissed. The Applicant and her
Representative failed to respond.
[5] A final attempt to contact the Applicant’s Representative was made by the Commission
on 3 November 2021 to discuss payment. The call was not answered and there was no provision
to leave a voicemail message.
[6] On 4 November 2021 the Commission attempted to contact the Applicant on her
nominated telephone number to discuss payment. The call was not answered and a voicemail
message was left advising the Applicant that payment of the required fee was still outstanding
and requesting a return call.
[2021] FWC 6312
DECISION
AUSTRALIA FairWork Commission
[2021] FWC 6312
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[7] To date there has been no response from the Applicant nor her representative, the
required fee has not been paid and a completed fee waiver form has not been received.
[8] 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.
[9] 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 prospects of success.
[10] Having regard to the circumstances of this matter, 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. An Order1 to this effect will be issued shortly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR735657
1 PR735658
M$ THE FAIR WORD COMMISSION SEAL THE
