Alice Mulqueeny v Connecting 2 Australia

[2022] FWC 2161

[2022] FWC 2161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Alice Mulqueeny
v

Connecting 2 Australia

(C2022/3754)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 18 AUGUST 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Ms Alice Mulqueeny (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by Connecting 2 Australia in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting her to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 27 June 2022.

1. On 29 June 2022 the Commission telephoned the applicant and left a voicemail regarding matters relating to the substance of the application which were omitted. Further, the message advised that the Commission’s attempts to take payment from the bank card the applicant had provided had failed. A text message was also sent to the applicant in relation to the payment issue. The Commission then sent a letter by email to the applicant with information on how to pay the filing fee and how to make a waiver application. The letter stated as follows:

“You have until 13 July 2022 to pay the fee or apply for a waiver.

If you don’t do this, your application may be dismissed. Please contact us if you have any questions about this.”

(emphasis omitted)

1. A further telephone call was made to the applicant on 13 July 2022. A voicemail was left advising the applicant that the matter was at risk of being dismissed for failure to pay the filing fee.

1. On 14 July 2022, a further voicemail was left with the applicant advising that a failure to pay the filing fee would result in the matter being dismissed. A letter was sent by the Commission to the applicant advising that the matter was being considered for dismissal as the filing fee remained unpaid and no waiver application had been made. The letter stated:

“If we don’t hear from you by Thursday, 21 July with the information we need, we may dismiss your application. This means we will close your case.”

(emphasis omitted)

1. In the absence of compliance by the applicant, the Commission called the applicant and left another voicemail on 26 July 2022. The message advised that the application was to be considered for dismissal for failure to pay the filing fee.

1. On 11 August 2022, the Commission left a voicemail with the applicant advising that the matter would be dismissed if she did not engage with the Commission by close of business on 16 August 2022. An email was also sent to the applicant with this information, attaching information explaining how to pay or make a waiver application.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived.

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)

Consideration and conclusion

1. The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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