Application by Kym Costello

[2024] FWC 3415

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.372—General protections

Application by Kym Costello

(C2024/7053)

DEPUTY PRESIDENT EASTON

SYDNEY, 6 DECEMBER 2024

Application to deal with other contraventions dispute – application dismissed.

On 30 September 2024 Ms Kym Costello made a general protections application not involving dismissal to the Fair Work Commission under s.372 of the Fair Work Act 2009 (Cth).

Ms Costello’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.373) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Ms Costello’s application.

Ms Costello 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).

I have decided to dismiss Ms Costello’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 Ms Kym Costello on 30 September 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kym Costello filed an application with the Fair Work Commission on 30 September 2024 under section 372 of the Fair Work Act 2009 (Cth) seeking a remedy for a general protection contravention that did not involve a dismissal. The Deputy President of the Fair Work Commission, Easton, dealt with the case in Sydney on 6 December 2024. Ms Costello's application was dismissed due to a failure to adhere to the requirements of the Act, specifically the non-payment or waiver of the prescribed fee as outlined in section 373 of the Act. This non-compliance led to the application being dismissed under the discretionary power granted to the Commission by section 587(1)(a) of the Act.

The central legal issue the court had to address was whether Ms Costello's application should be dismissed due to the procedural error of not paying the prescribed fee. This issue hinged on whether the Court should exercise its discretion to dismiss the application under section 587(1)(a) of the Act. The court referenced Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 and other relevant cases to support its reasoning. It was determined that Ms Costello had been given sufficient opportunity to correct the deficiency in her application, but had failed to do so.

In exercising its discretion, the Fair Work Commission decided to dismiss Ms Costello's application. The Deputy President found that Ms Costello had ample opportunity to rectify the fee issue, referencing previous cases that provided guidance on similar situations. The Commission concluded that the application was not made in accordance with the Act, and thus dismissed it. The final order was that the application made by Ms Kym Costello on 30 September 2024 under section 365 of the Fair Work Act 2009 (Cth) was dismissed.

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