Caroline Elmensahwy v Retinue Accounting Pty Ltd

[2024] FWC 942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Caroline Elmensahwy
v

RETINUE ACCOUNTING PTY LTD

(C2024/1252)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 APRIL 2024

Application to deal with contraventions involving dismissal

On 27 February 2024, Ms Caroline Elmensahwy (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The Applicant alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

Context

On 29 February 2024, the Applicant returned a telephone call to Fair Work Commission (the Commission) and the Applicant was advised that question 3.4 had not been answered on the F8 Application form and needs to be completed.

The application was accompanied with a completed application for waiver of the lodgement fee (waiver application) which was subsequently refused. The Applicant was notified by telephone on 1 March 2024 and advised the Commission that she will send a completed application form and make payment of the application fee. A letter was emailed to confirm the waiver refusal.

A follow-up final call was made on 21 March 2024, a voice message was left to request payment of the application fee, and that the amended application with question 3.4 completed is still outstanding.

The matter was referred to Chambers on 3 April 2024 and the Applicant was telephoned on that day. A voice message was left for the Applicant to ring Chambers regarding payment of the application fee and to provide the missing information for the F8 application. A final notice was emailed to the Applicant on 3 April 2024 requesting same and advised if a response is not received by 5:00pm on Monday 8 April 2024 the matter will be dismissed.

To date, the Applicant has not responded to any of the telephone calls and correspondence sent by my Chambers.

Legislative framework

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 $83.30. The regulations also allow for an application to be made for the fee to be waived.

“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.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(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.”

Consideration and conclusion

The Applicant has neither paid the lodgement fee and has not provided a completed Form F8 application. Accordingly, the application is not made in accordance with s.367 of the Act.

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.

The application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission (FWC) was presented with an application by Caroline Elmensahwy, who claimed that she had been dismissed in contravention of the general protections under the Fair Work Act 2009. The application, lodged on 27 February 2024, sought to address the alleged dismissal by Retinue Accounting Pty Ltd. The Commission, however, noted that the application was incomplete and did not include the necessary lodgement fee, nor was it accompanied by a completed F8 Application form. Despite multiple attempts by the Commission to contact Ms Elmensahwy and request the missing information and fee, she did not respond.

The legal issues before the Commission were whether the application complied with the statutory requirements under the Fair Work Act 2009 and whether the application could be dismissed due to its non-compliance. Section 367(1) of the Act stipulates that an application under section 365 must be accompanied by the prescribed fee, and section 587(1)(a) provides that the Commission may dismiss an application if it is not made in accordance with the Act. The Commission needed to determine if the failure to provide the required information and fee warranted dismissal of the application.

In assessing the matter, the Vice President of the Commission, Catanzariti, found that Ms Elmensahwy's application was not made in accordance with the Act due to the outstanding lodgement fee and the incomplete F8 Application form. Despite numerous communications from the Commission, Ms Elmensahwy did not take any steps to remedy the deficiencies. Given these circumstances, the Vice President exercised the discretion to dismiss the application under section 587(1)(a) of the Act. The application was dismissed as it did not meet the basic requirements for lodgement and processing.

The Commission's decision was clear and based on the statutory obligations outlined in the Fair Work Act 2009. The Vice President noted that the application was not only incomplete but also failed to comply with the essential procedural requirements, leading to the dismissal of the application.

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