Alexandra Jenke v The Scout Association of Australia, South Australian Branch Incorporated

[2023] FWC 535

[2023] FWC 535

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Alexandra Jenke
v

The Scout Association of Australia, South Australian Branch Incorporated

(C2023/822)

DEPUTY PRESIDENT CLANCY MELBOURNE, 20 MARCH 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 16 February 2023, Ms Alexandra Jenke (applicant) made an application under s365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed by The Scout Association of Australia, South Australian Branch Incorporated in contravention of the general protection provisions in Part 3-1 of the Act.

1. Section 367 of the Act relevantly provides as follows:

“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.”

1. At the time Ms Jenke’s application was made, the Fair Work Regulations 2009 (Cth) (Regulations) prescribed a filing fee of $77.80. The Regulations also allow for an application to be made for the filing fee to be waived. The application was not accompanied by the fee prescribed by the Regulations or by a completed Form F80 - Waiver of application fee (Form F80).    

1. On 17 February 2023, the Commission emailed correspondence to Ms Jenke’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

If you don’t make payment within 7 days your application may be dismissed.”

1. An SMS notification was also sent to Ms Jenke’s nominated telephone number on 20 February 2023. The SMS advised Ms Jenke’s to take action in compliance with the email from the Commission regarding payment of the application fee.

1. On 21 February 2023, the Commission emailed correspondence to Ms Jenke’s nominated email address reminding that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The correspondence instructed the applicant how to pay the application fee or make a waiver application and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

1. A further attempt to contact Ms Jenke on her nominated telephone number was made by the Commission on 23 February 2023 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Ms Jenke that payment of the required fee was still outstanding. A call was also made to her representative and a message to the same effect was left. 

1. On 6 March 2023 the Commission emailed correspondence to Ms Jenke’s representative’s email address, copying in Ms Jenke, advising again that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application.  The email concluded:

“You have until COB Thursday 9 of March 2023 to rectify the issue before the matter is at risk of dismissal.”

1. To date, there has been no response and the applicant has neither paid the lodgement fee nor filed a completed waiver application.

1. Section 587 of the 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.

…

(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)

1. Ms Jenke has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions.

2. Section 587 of the Act vests in the Commission the discretion to dismiss an application on its own initiative. I am satisfied it is appropriate in the circumstances of this case to exercise my discretion and dismiss Ms Jenke’s application under s.587(1)(a) on the basis that she has neither paid the filing fee nor sought a fee waiver, and as such, the application is not made in accordance with s.367 of the Act. An Order to this effect will be issued with this Decision.

1. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR760021>