Amanda Browning v Roy Morgan Interviewing Services Pty Ltd

[2022] FWC 2272

[2022] FWC 2272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Amanda Browning
v
Roy Morgan Interviewing Services Pty Ltd

(C2022/5582)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 19 September 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Ms Amanda Browning (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed 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 filing fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them 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 made on 9 August 2022, being filed by the applicant’s representative.

1. On 10 August 2022, the Commission emailed correspondence to the applicant’s nominated email address advising that their application required payment of the application fee or a completed waiver form if they 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.”

(emphasis omitted)

1. An SMS notification was also sent to the applicant’s nominated telephone number on 10 August 2022. The SMS advised the applicant to take action in compliance with the email from the Commission regarding payment of the application fee.

1. On 16 August 2022, the Commission emailed correspondence to the applicant’s nominated email address reminding the applicant that their application required payment of the application fee or a completed waiver form. The correspondence instructed the applicant on 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.”

(emphasis omitted)

1. A further attempt to contact the applicant on her nominated telephone number was made by the Commission on 19 August 2022. The call was not answered, and a voicemail message was left advising the applicant that payment of the required fee was still outstanding.

1. On 25 August 2022, the Commission telephoned the applicant and left a voice message, the particulars of which were sent in an email. The email, sent to the applicant and her representative, identified that the matter was being considered for dismissal on the basis that the applicant failed to pay the application fee or make a waiver application. The applicant and the representative were invited to provide a response by close of business 26 August 2022.

1. On 15 September 2022, the Commission left a further voicemail with the applicant. The particulars of that call were set out in an email to the applicant and her representative on the same day. The applicant was advised that the matter would be dismissed without further notice if no response was returned by close of business 16 September 2022.

1. To date, the applicant has not paid the application 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 $77.80. 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.

Consideration and conclusion

1. The applicant has neither paid the application fee nor 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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