Alison Bell v MLH Property Solutions

[2020] FWC 2798

[2020] FWC 2798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Alison Bell
v
MLH Property Solutions
(C2020/2585)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 13 AUGUST 2020

Application to deal with contraventions involving dismissal.

[1] Ms Alison Bell (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by MLH Property Solutions (Respondent) in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 20 April 2020.

[4] On 21 April 2020, the Commission telephoned the Applicant to obtain payment of the lodgement fee. The call was unanswered and accordingly a voicemail message was left requesting the Applicant contact the Commission.

[5] That same day, a letter was emailed to the Applicant and her representative Ms Tianna De Silva of Employee Dismissal Claims, advising that the Applicant 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. However, an automated email was received in response stating that “a communication failure occurred during the delivery of this message” to the Applicant’s email address. A telephone call was made to the Applicant’s representative regarding the delivery failure. The call was unanswered.

[6] On 5 May 2020, the Commission telephoned the Applicant. A voicemail message was left requesting the Applicant urgently contact the Commission. Subsequently, the Applicant’s representative contacted the Commission correcting the Applicant’s email address. The letter of 21 April 2020 was reissued to the Applicant with a revised response date of 14 days from 5 May 2020.

[7] On 11 May 2020, the Commission contacted the Applicant’s representative seeking payment of the lodgement fee or a completed waiver application. The Applicant’s representative advised that an email would be sent to the Applicant regarding the incomplete application.

[8] In the absence of payment of the lodgement fee or receipt of a completed waiver application, the Commission attempted to contact the Applicant as follows:

(a) at 10:54 am on 20 May 2020, by letter emailed to the Applicant and her representative, which advised that the application remained incomplete and may be dismissed unless the lodgement fee was paid, or a completed waiver application was received within seven days.

(b) at 11:06 am on 20 May 2020, by telephone to the Applicant’s representative. The representative advised that attempts had been made to contact the Applicant.

(c) at 12:04 pm on 20 May 2020, via SMS text message to the Applicant requesting she contact the Commission.

(d) at 10:04 am on 27 May 2020, by email to the Applicant and her representative. The Applicant was requested to make payment of the lodgement fee by close of business, or her application may be dismissed.

(e) at 9:48 am at 28 May 2020, by telephone to the Applicant.

[9] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[10] 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)

[11] 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

[12] 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.

[13] 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.

DEPUTY PRESIDENT

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