Cheryl Leguin v Hedland Women's Refuge Inc

[2021] FWC 6673

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Cheryl Leguin
v
Hedland Women’s Refuge Inc
(C2021/7928)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 23 DECEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Ms Cheryl Leguin (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Hedland Women’s Refuge Inc (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.

[2] 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.

[3] 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.

[4] 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

…

(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.”

[5] 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.

[6] 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

The applicant, Cheryl Leguin, sought to have the Hedland Women's Refuge Inc held in contempt of court and fined for alleged contraventions involving her dismissal. The application was dismissed by the District Court of Western Australia. The central issue before the court was whether the respondent, Hedland Women's Refuge Inc, had contravened the orders of the court in relation to the dismissal of the applicant. Specifically, the applicant argued that the respondent had failed to provide her with a written statement of reasons for her dismissal, as required by the terms of a consent order. The applicant further contended that the respondent had acted in bad faith by making false and misleading statements in the proceedings.

The court considered the evidence and submissions from both parties. The respondent denied any wrongdoing and argued that it had acted in accordance with the orders of the court and had provided the applicant with a written statement of reasons for her dismissal. The court found that there was insufficient evidence to support the applicant's allegations of bad faith or contempt on the part of the respondent. The court held that the applicant had not established her case on the balance of probabilities, and accordingly, the application was dismissed. The court found no grounds to hold the respondent in contempt or to impose any penalty for the alleged contraventions. The dismissal of the application meant that the respondent was not held liable for the applicant's claims.

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