Angel Barbara Rose Vonder v Mount Isa City Council

[2022] FWC 2472

[2022] FWC 2472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Angel Barbara Rose Vonder
v

Mount ISA City Council

(C2022/5410)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 15 SEPTEMBER 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Mrs Angel Barbara Rose Vonder (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 filed personally by the applicant, by email, on 30 July 2022.

1. On 2 August 2022, the Commission called the applicant. The applicant raised her uncertainty with respect to the process and indicated she wished to seek legal advice. The Commission emailed correspondence to the applicant’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:

“You have until 16 August 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. On 16 August 2022, the Commission left a voicemail with the applicant requesting a call back urgently in relation to the application fee. The applicant was notified that the matter was at risk of being dismissed.

1. A similar voicemail was left with the applicant on 18 August 2022. The Commission also emailed correspondence to the applicant noting that her application required payment of the filing 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:

“If we don’t hear from you by 25 AUGUST 2022 with the information we need, we
may dismiss your application. This means we will close your case.”

(emphasis omitted)

1. On 29 August 2022, a further voicemail was left with the applicant advising her that the matter was at risk of being dismissed.

1. On 15 September 2022, the Commission telephoned the applicant and left a voice message, the particulars of which were sent in an email. The email 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 was invited to provide a response 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 lodgement 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.

2. The application is dismissed.

DEPUTY PRESIDENT

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