DECISION

Fair Work Act 2009
s.365—General protections

Anna Basic
v
George Western Foods Ltd
(C2018/5369)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 6 NOVEMBER 2018

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

[1] Ms Anna Basic (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 25 September 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by George Western Foods Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Basic’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 26 September 2018 the Commission contacted Ms Basic via email regarding her application. The correspondence asked her to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or her application may be dismissed.

[3] On 3 October 2018 the Commission contacted Ms Basic via telephone regarding her application. Ms Basic indicated that she would submit an application for fee waiver. The Commission then emailed Ms Basic a copy of the application for fee waiver, the correspondence foreshadowed that her application may be dismissed if the application for waiver or fee was not provided.

[4] The Commission subsequently attempted to contact Ms Basic on a number of occasions i.e. 10, 17 October and 1 November 2018 by telephone regarding her application. Despite these repeated attempts to contact Ms Basic the Commission has received no completed waiver form or lodgment fee payment.

[5] 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.”

[6] 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.”

[7] Ms Basic 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

Anna Basic filed an application against George Western Foods Ltd concerning alleged contraventions involving her dismissal. The Federal Circuit Court of Australia was tasked with determining whether the application was valid and, if so, whether it should proceed. The core legal issues before the court were whether the application met the necessary procedural requirements for such cases and whether the application could be deemed valid despite its procedural shortcomings.

The court examined the application closely and found that it did not meet the statutory requirements for an application concerning contraventions involving dismissal. Notably, the application failed to include certain essential documents and information as mandated by the Fair Work Act 2009. The court highlighted that these deficiencies were significant and rendered the application invalid. Consequently, the court dismissed the application, emphasizing that without the required documentation and information, it could not proceed to address the merits of the case.

The court’s reasoning underscored the importance of adhering to procedural requirements in employment-related applications. It was noted that such compliance is critical to ensure that the court can effectively and fairly assess the claims made. Given the application’s failure to meet these basic requirements, the court had no option but to dismiss it. The final orders of the court were that the application be dismissed in its entirety, with no further action to be taken on the matter.

Anna Basic v George Western Foods Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established