Carly Moore v Tammie Elizabeth June Lowe Summary

[2022] FWC 182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Carly Moore
v

Tammie Elizabeth June Lowe

(C2021/7922)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 28 JANUARY 2022

Application to deal with contraventions involving dismissal - application dismissed

Ms Carly Moore (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Tammie Elizabeth June Lowe (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting her to the deficiency, nor has she rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

The application was lodged on 19 November 2021. On 22 November 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived. On 6 December 2021, the Commission wrote to the applicant a second time, noting that the lodgement fee remained unpaid. The letter stated that unless the fee was paid or a completed waiver application was received by 13 December 2021, the matter may be dismissed.

The applicant has not paid the lodgement fee or submitted a completed waiver form. She has not made any submissions as to why her application should not be dismissed.

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 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.”

Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations’. At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor sought a fee waiver. The application is not made in accordance with s 367 of the Act.

This deficiency engages s 587(1)(a). The Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application had not been accompanied by the required fee. The applicant has taken no action to address the deficiency. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from Carly Moore against Tammie Elizabeth June Lowe, seeking redress for an alleged dismissal by Lowe in contravention of the general protections provisions of the Fair Work Act 2009. Moore's application under section 365 of the Act claimed that she was dismissed wholly or partly for a proscribed reason. The application was made without payment of the required lodgement fee, a deficiency that Lowe highlighted in correspondence to Moore. Despite being given multiple opportunities to rectify this issue, Moore did not respond or take any steps to pay the fee or seek a waiver. Consequently, Lowe applied to have Moore's application dismissed.

The legal issue before the Commission was whether the application could be dismissed for not being made in accordance with the requirements of the Act, specifically the failure to pay the prescribed lodgement fee. Section 367 of the Act mandates that an application under section 365 must be accompanied by the required fee, while section 587 provides the grounds and discretion for the Commission to dismiss an application. Moore's failure to address the fee deficiency, despite explicit notice, raised the question of whether the application should be dismissed under section 587(1)(a) of the Act.

The Fair Work Commission found that the application did not comply with the Act as it was not accompanied by the required fee, thus falling under section 587(1)(a). The Commission exercised its discretion to dismiss the application, given that Moore had been notified of the deficiency and had failed to take any action to rectify it. The Commission emphasised that the application was not made frivolously or vexatiously and did not lack reasonable prospects of success, but it was dismissed due to the procedural non-compliance with the fee requirement. The Commission concluded that dismissing the application was fair and reasonable under the circumstances.

Moore's application was dismissed in accordance with section 587(1)(a) of the Fair Work Act 2009. The dismissal was made on the basis that the application was not made in accordance with the Act due to the failure to pay the prescribed lodgement fee. The Commission reiterated that the dismissal was not on the grounds that the application was frivolous, vexatious, or lacked reasonable prospects of success, but solely due to the procedural non-compliance.

Carly Moore v Tammie Elizabeth June Lowe

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established