Application by Nadia Roggeri Summary

[2024] FWC 3416

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.365—General protections

Application by Nadia Roggeri

(C2024/7291)

DEPUTY PRESIDENT EASTON

SYDNEY, 6 DECEMBER 2024

Application to deal with contraventions involving dismissal – application dismissed.

On 9 October 2024 Mrs Nadia Roggeri 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 Roggeri’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

Section 367 of the Act is in the following terms:

“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

(c)the circumstances in which all or part of the fee may be waived or refunded.”

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

Commission staff contacted Mrs Roggeri on the following dates:
·   15 October 2024 by email;
·   16 October 2024 by SMS;
·   31 October 2024 by email; and
·   4 November 2024 by telephone.

Mrs Roggeri was advised that she must pay the filing fee or apply for a waiver if she wished to proceed with the application. Mrs Roggeri was also warned that the application could be dismissed if the filing fee was not paid within two days.

To date there has been no response from Mrs Roggeri, no fee paid and no completed waiver request received.
Section 587 of the Act includes the following provisions:

“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 Roggeri’s 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 Roggeri’s application.

Mrs Roggeri 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 Roggeri’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 Nadia Roggeri on 9 October 2024 is dismissed.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Nadia Roggeri applied to the Fair Work Commission under section 365 of the Fair Work Act 2009 for relief relating to an alleged dismissal. The Deputy President, Easton, dismissed the application on the basis that it was not made in accordance with the Act, specifically for the failure to pay the requisite application fee. Roggeri had been notified multiple times of the need to pay the fee or apply for a waiver, but she failed to take any action to address the matter. The decision was made under section 587(1)(a) of the Act, which allows for the dismissal of an application that is not made in accordance with the Act. The Deputy President found that Roggeri had been given ample opportunity to rectify the deficiency but had largely ignored the Commission's inquiries and warnings.

The primary legal issue the Deputy President had to decide was whether Roggeri's application complied with the statutory requirements of the Fair Work Act. Section 367 of the Act mandates that an application must be accompanied by a prescribed fee, with regulations detailing the fee amount and circumstances under which it may be waived or refunded. Roggeri's application was incomplete as she did not pay the fee nor submitted a waiver request. Section 587(1)(a) of the Act provides the Commission with the discretion to dismiss an application that is not made in accordance with the Act. The Deputy President exercised this discretion, finding that the application was not compliant and had no reasonable prospects of success.

In reaching the decision to dismiss the application, the Deputy President considered the statutory framework governing general protections applications and the procedural requirements outlined in the Fair Work Act. The Deputy President highlighted that Roggeri was given multiple opportunities to pay the required fee or apply for a fee waiver. Despite these opportunities, Roggeri did not respond, pay the fee, or submit a waiver request. The Deputy President found that the application was not made in accordance with the Act due to the non-compliance with the fee requirement. The decision also referenced previous cases, including Bond v Carbridge Pty Ltd T/A Carbridge, which emphasised the importance of following statutory procedures and the consequences of non-compliance.

The Fair Work Commission, pursuant to section 587(1)(a) of the Fair Work Act 2009, dismisses the application made by Mrs Nadia Roggeri on 9 October 2024. The application is dismissed on the basis that it was not made in accordance with the Act due to the failure to pay the required fee or submit a completed waiver request. The dismissal is final and no further action will be taken on the application.

Application by Nadia Roggeri

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established