Aine Farley v Michael Meredith

[2020] FWC 1479

[2020] FWC 1479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Aine Farley

v

Michael Meredith

(C2019/7136)

Deputy President Millhouse MELBOURNE, 20 MARCH 2020

Application to deal with contraventions involving dismissal.

1. Ms Aine Farley (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act). She alleges that she was dismissed by Mr Michael Meredith (Respondent) in contravention of the general protection provisions of the Act.

1. I have decided to dismiss the application. The reasons for this decision follow.

Context

1. The application was received by the Commission on 21 November 2019.

1. On 22 November 2019, the Commission:

(a)   emailed a letter to the Applicant advising that she must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed; and

(b)   telephoned the Applicant to explain the above email. A voicemail message was left.

1. On 3 December 2019, the Applicant filed a waiver application; however, it had not been completed correctly and was therefore deficient. The Commission telephoned the Applicant who advised that she would resubmit her waiver application by the following day. This did not occur.

1. In the absence of any communication from the Applicant, the Commission contacted the Applicant on four separate occasions, as follows:

(a)   at 11:03am on 9 December 2019, by telephone. A voicemail message was left requesting the Applicant pay the lodgement fee or a file a correctly completed waiver application. A letter to this effect was emailed to the Applicant that day, providing 14 days for compliance;

(b)   at or about 10:06am on 12 December 2019, three telephone calls were made to the Applicant. On each of the three occasions, the Applicant answered the call; however each call was then terminated. A voicemail message was left. A letter of even date was emailed and sent by express post to the Applicant providing a further seven days for compliance;

(c)   at 2:38pm on 19 December 2019, by telephone. A voicemail message was left. A letter was emailed to the Applicant advising that unless the lodgement fee was paid or a correctly completed waiver application was received by the next business day, the application may be dismissed; and

(d)   at 11:53am on 23 December 2019, by telephone. The call could not be completed, and therefore no voicemail message was left.

1. On 24 January 2020, an email was sent to the Applicant reiterating the matters raised by the Commission in its previous letters dated 9 December, 12 December and 19 December 2019.

1. The Applicant responded to the email on 4 February 2020, advising that a waiver application had been filed in the Commission. The Commission responded by email dated 5 February 2020 advising that the waiver application filed by the Applicant on 3 November 2019 was not completed correctly. The Applicant was advised that to proceed with her application she must either file a correctly completed waiver application, or make payment of the lodgment fee by 27 February 2020, otherwise the application would be dismissed.

1. To date, the Applicant has not paid the lodgement fee or filed a correctly completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s.365 of the Act, s.367 provides:

367       Application fees

(1)   The application 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 section 365; 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.”

(emphasis added)

1. Section 587 of the Act provides that:

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.

(2)   Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)   is frivolous or vexatious; or

(b)   has no reasonable prospects of success.

(3)   The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

(emphasis added)

Consideration and conclusion

1. Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

1. In these circumstances, I am satisfied that the Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s.587(1)(a) of the Act.

1. An order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR717638>