Cheryl Sam v Mount Isa Irish Association Friendly Society Ltd

[2023] FWC 218

[2023] FWC 218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Cheryl Sam
v

Mount Isa Irish Association Friendly Society Ltd

(C2022/8303)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 30 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissal

1. Cheryl Sam (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the filing fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has this been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed on 14 December 2022 by the applicant’s representative.

1. On 15 December 2022, the Commission emailed the applicant advising that the application required payment of the filing fee or a completed waiver application. The email contained instructions explaining how to do so. The email put the applicant on notice that the application may be dismissed in the absence of payment.

1. An SMS notification was sent to the applicant on 16 December 2022 requesting compliance with the email from the Commission of 15 December 2022.

1. On 21 December 2022, the Commission emailed the applicant as the filing fee remained unpaid. The email contained further instructions explaining how to pay the filing fee or make a waiver application. On the same day, the applicant emailed the Commission with an enquiry regarding the possibility of a payment plan. The applicant was advised that such arrangements were not available and provided instructions on how to make a waiver application.

1. The Commission called the applicant on 30 December 2022. The applicant advised that she was unable to continue the conversation and said that she would contact the Commission.

1. The Commission sent an email to the applicant and the applicant’s representative on 24 January 2023. The email identified that the filing fee had not been paid, and a waiver application had not been received. The email advised that if no response was received by close of business on 27 January 2023, the application would be dismissed. The email attached further instructions explaining how to pay or make a waiver application.

1. To date, the applicant has not paid the filing 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 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 filing 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 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.

1. The application is dismissed.

DEPUTY PRESIDENT

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