Application by Francesca Newman-Evans Summary

[2024] FWC 3421

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.365—General protections

Application by Francesca Newman-Evans

(C2024/7476)

DEPUTY PRESIDENT EASTON

SYDNEY, 6 DECEMBER 2024

Application to deal with contraventions involving dismissal – application dismissed.

On 18 October 2024 Mrs Newman-Evans made a general protections application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth).

Mrs Newman-Evans’ application was incomplete because she did not pay the required fee or file a completed request to waive the fee.

Commission staff contacted Mrs Newman-Evans on the following dates:
· 22 October 2024 by telephone and email; and
· 12 November 2024 by telephone.

Mrs Newman-Evans was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application. Mrs Newman-Evans was also warned that the application could be dismissed if the filing fee was not paid by 13 November 2024.

To date there has been no response from Mrs Newman-Evans, no fee paid and no completed waiver request received.

Mrs Newman-Evans’ application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.367) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mrs Newman-Evans’ application.

Mrs Newman-Evans has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

I have decided to dismiss Mrs Newman-Evans’ general protections claim using the power available under s.587(1)(a) and make the following order:

The application under s.365 of the Fair Work Act 2009 (Cth) made by Mrs Francesca Newman-Evans on 18 October 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Francesca Newman-Evans filed an application with the Fair Work Commission under section 365 of the Fair Work Act 2009, seeking to address alleged dismissal contraventions. However, the application was incomplete, as the requisite filing fee was neither paid nor was a completed fee waiver request submitted. Despite multiple contacts by the Commission staff via telephone and email, Mrs Newman-Evans failed to address this deficiency, leading to the application's dismissal.

The primary legal issue the Deputy President had to resolve was whether to exercise the discretion to dismiss Mrs Newman-Evans’ application for non-compliance with the procedural requirements under section 587(1)(a) of the Fair Work Act. This section mandates that the Commission can dismiss an application if it is not made in accordance with the Act, particularly when the prescribed fee has not been paid or waived. The court needed to consider if the procedural breach warranted dismissal and if there was any justification for extending further opportunities to Mrs Newman-Evans to rectify the situation.

The Deputy President concluded that the application was indeed not made in accordance with the Act due to the unpaid fee or lack of a completed fee waiver request. Given the clear statutory obligation and the multiple opportunities provided to Mrs Newman-Evans to address the deficiency, the Deputy President found that there was no justification to extend further opportunities for compliance. The court's decision was influenced by precedents such as Bond v Carbridge Pty Ltd T/A Carbridge, which emphasised the importance of procedural compliance. Consequently, the application was dismissed.

The Fair Work Commission ordered that the application made by Mrs Francesca Newman-Evans on 18 October 2024 be dismissed under section 365 of the Fair Work Act 2009. This decision underscores the necessity for applicants to adhere to the procedural requirements of the Act, including the timely payment of fees or submission of a completed fee waiver request.

Application by Francesca Newman-Evans

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established