Caitlin Murray v John Peter Jacobi

[2021] FWC 904

[2021] FWC 904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Caitlin Murray
v
John Peter Jacobi
(C2020/6507)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Ms Caitlin Murray (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by Mr John Peter Jacobi in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 24 August 2020.

[4] On 26 August 2020, the Commission contacted the Applicant regarding the unpaid lodgement fee as follows:

(a) by telephone at 11:10am. The call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission.

(b) by letter emailed to the Applicant at 11:13am advising the Applicant that she must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed.

(c) by SMS text message at 12:04pm to the Applicant’s nominated contact number requesting the Applicant contact the Commission because of a problem with her application.

[5] In the absence of payment of the lodgement fee or a completed waiver application, the Commission telephoned the Applicant on 9 September 2020. A voicemail message was left requesting the Applicant urgently contact the Commission regarding the unpaid lodgement fee and to clarify the date that her employment is said to have ended.

[6] On 10 September 2020, the Commission telephoned the Applicant, however the call was unanswered. A voicemail was left advising that the application may be dismissed.

[7] Subsequently that day, a letter was emailed to the Applicant advising that the application remained incomplete and may be dismissed unless the lodgement fee was paid, or a completed waiver application was received within seven days. A SMS text message was also sent to the Applicant regarding her incomplete application, and which requested the Applicant contact the Commission.

[8] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[9] 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

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

(emphasis added)

[10] Section 587 of the Act provides that:

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.

(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.

(emphasis added)

Consideration and conclusion

[11] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[12] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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