Carla Da Silva Sela v Cranbrook Care Bella Vista Gardens

[2023] FWC 1916

[2023] FWC 1916

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Carla Da Silva Sela
v

Cranbrook Care Bella Vista Gardens

(C2023/2235)

VICE PRESIDENT CATANZARITI SYDNEY, 2 AUGUST 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 24 April 2023, Ms Carla Da Silva Sela (the Applicant) initiated an application under s 365 of the Fair Work Act 2009 (Cth) (the Act) via telephone. The Applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The Applicant did not complete the application by returning a filled-out Form F8. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The Applicant has not responded to correspondence from the Commission alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.

Context

1. On 24 April 2023, the Commission sent correspondence to the Applicant’s nominated email address informing them that they had 14 days from the date of their telephone application (or by 8 May 2023) to complete the attached Form F8. The Form F8 had been partially filled based on the information provided to the Commission in the Applicant’s telephone application. The email requested that the Applicant check the information already present for correctness and complete the remaining fields. The email also contained a blank Form F80 for the Applicant to complete, as she indicated in her telephone application that she would require a fee waiver. On the same day, an SMS was sent to the Applicant’s nominated phone number requesting that they contact the Commission regarding their incomplete application.

1. On 4 May 2023, the Commission contacted the Applicant via her nominated phone number as no completed Form F8 or F80 had been returned. The Applicant informed the Commission that she had not received the email sent on 24 April 2023. Although the initial email was sent to the correct email address, the documents were sent again while the Applicant was still on the phone, who subsequently confirmed that she had received them. It was then emphasised to the Applicant that the Commission must receive a completed application by 8 May 2023, or her matter would be at risk of being dismissed.

2. On 8 May 2023, the Commission received the completed Form F8 from the Applicant. However, it was not accompanied by a Form F80 fee waiver nor the payment of the required lodgement fee.

1. On 9 May 2023, the Commission attempted to contact the Applicant on her nominated phone number as her application remained unpaid. The Applicant did not answer the call. A voicemail message was left advising her that her fee waiver or payment was still outstanding.

1. To date, the Applicant has not paid the required lodgement fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s.365 of the Act, s.367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. 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.

…

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

Consideration and conclusion

1. The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.

2. The application is dismissed.

VICE PRESIDENT

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