Application by Julie Wynne

[2024] FWC 3122

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.365—General protections

Application by Julie Wynne

(C2024/6203)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 NOVEMBER 2024

Application to deal with contraventions involving dismissal – incomplete application – application is not made in accordance with the Act – application dismissed

On 29 August 2024 Mrs Julie Wynne made a general protections application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth).

For the reasons that follow I am satisfied that Mrs Wynne’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

The application form filed by Mrs Wynne was incomplete because it did not include the employer’s details.

Commission staff attempted to contact Mrs Wynne on 5 September 2024 and 18 September 2024 by telephone. Mrs Wynne has been on notice of the likely consequences of her application remaining incomplete.

No response has been received from Mrs Wynne.

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.

…

(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”

Mrs Wynne’s application was not made in accordance with the Act (per s.587(1)(a)) because the application was incomplete. Section 587 confers a discretion on the Commission to dismiss the application.

I am satisfied that Mrs Wynne has had the opportunity to put her case for consideration on all matters material to the making of the decision to dismiss her application under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). Mrs Wynne has been given ample opportunity to rectify the deficiency in her application however the Commission’s inquiries and warnings have been ignored.

I have decided to dismiss Mrs Wynne’s 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 Julie Wynne on 29 August 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Julie Wynne filed an application with the Fair Work Commission under section 365 of the Fair Work Act 2009, seeking to address alleged contraventions involving her dismissal. The application was incomplete as it did not include the employer's details, a crucial piece of information required for the Commission to process the application. Despite multiple attempts by Commission staff to contact Mrs Wynne to rectify this deficiency, she did not respond. The Deputy President, Easton, was required to determine whether the application could be dismissed on the grounds that it was not made in accordance with the Act, or whether there were other grounds under section 587 of the Act for dismissing the application.

The central legal issue was whether the application could be dismissed because it was incomplete, as provided for in section 587(1)(a) of the Act. Additionally, the Court needed to consider if there were any other grounds under the Act that would justify dismissing the application. The Deputy President noted that the application was not only incomplete but also that Mrs Wynne had been on notice of the potential consequences of an incomplete application. The Court considered whether Mrs Wynne had been given a fair opportunity to rectify the deficiency in her application, which she had not done despite warnings.

The Deputy President concluded that Mrs Wynne's application was not made in accordance with the Act due to its incompleteness and that she had been given ample opportunity to address this issue. The warnings and attempts to contact her had been ignored, leading to the conclusion that dismissing the application was appropriate. The Deputy President exercised the discretion provided under section 587(1)(a) of the Act to dismiss the application, considering the circumstances and the lack of response from Mrs Wynne. The Deputy President dismissed the application and made the corresponding order.

The final order was that the application made by Mrs Julie Wynne under section 365 of the Fair Work Act 2009 on 29 August 2024 was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established