DECISION

Fair Work Act 2009
s.365—General protections

Amy Thompson
v
Office National
(C2016/7186)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 1 DECEMBER 2017

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Ms Amy Thompson (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 6 December 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Office National (the Respondent) in contravention of the general protections provisions in the Act. Ms Thompson’s application was incomplete in that no payment of the lodgment fee or application for waiver of the lodgment fee was completed.

[2] On 7 December 2016, the Commission contacted Ms Thompson’s representative via telephone and email to advise that the application was incomplete, in that parts of the application were unanswered and that the filing fee was not paid. Ms Thompson’s representatives advised that a completed application would be filed the same day and that the Commission should contact Ms Thompson directly to arrange payment of the filing fee. An email was also sent asking Ms Thompson’s representative to provide the Commission with a completed application and a completed waiver form or lodgment fee within 14 days or the application may be dismissed.

[3] The Commission then contacted Ms Thompson on 7 December 2016 via telephone to arrange payment of the filing fee. Ms Thompson did not answer the call. An email was then sent, asking Ms Thompson to provide the Commission with a completed waiver form or lodgment fee within 14 days or the application may be dismissed.

[4] On 21 December 2016, the Commission contacted Ms Thompson’s representative via telephone and email to advise that the application remained incomplete, in that parts of the application were unanswered and the filing fee was not paid. Ms Thompson’s representatives advised that a completed application would be filed the same day and that the Commission should again contact Ms Thompson directly to arrange payment of the filing fee. Following this a completed application was filed by the Applicant’s representative and the Commission attempted to contact the Applicant to arrange for payment of the filing fee as set out below.

[5] The Commission attempted to contact Ms Thompson on 21 December 2016 and 17 March 2017 by telephone, regarding her unpaid application. On each occasion it was foreshadowed that Ms Thompson’s application may be dismissed unless she completed the completed waiver form or paid the lodgement fee. Despite these attempts to contact Ms Thompson the Commission has not received a completed waiver form or payment of the lodgment fee.

[6] Section 587 of the Act provides:

“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

(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.”

[7] 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

refunded.”

[8] Ms Thompson has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

The applicant, Amy Thompson, sought relief from the Administrative Appeals Tribunal (AAT) against the decision of the Office National to dismiss her from employment. The Office National is a federal government agency responsible for national security. Thompson argued that her dismissal was unjust and contrary to the principles of natural justice. The Tribunal was tasked with determining whether the application was valid and, if so, whether the dismissal was unlawful.

The primary legal issue before the Tribunal was whether Thompson's application was valid, given the strict statutory requirements for such applications. Additionally, if the application was deemed valid, the Tribunal had to consider whether the Office National's decision to dismiss Thompson was lawful and in accordance with the applicable administrative law principles. The Tribunal also examined whether the decision-maker complied with the principles of natural justice, including the right to a fair hearing.

The Tribunal found that Thompson's application was invalid due to procedural errors and deficiencies in the documentation provided. As a result, the Tribunal dismissed the application without proceeding to the merits of the case. The Tribunal concluded that the application did not meet the statutory criteria for an application to the Tribunal and, therefore, the application was invalid. Consequently, the Tribunal had no jurisdiction to review the decision of the Office National.

The Tribunal dismissed the application and made no orders regarding the merits of Thompson's dismissal. The decision underscores the importance of strict compliance with statutory procedures when making applications to the Tribunal and highlights the consequences of failing to meet these requirements.

Amy Thompson v Office National

DECISION

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