Christine Williamson v Empowered Living Support Services Ltd

[2022] FWC 702

[2022] FWC 702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Christine Williamson
v

Empowered Living Support Services Ltd

(C2022/1261)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 30 MARCH 2022

Application to deal with contraventions involving dismissal – application dismissed

1. Ms Christine Williamson (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by Empowered Living Support Services Ltd 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 lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting her to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The applicant’s representative filed the application on behalf of the applicant on 18 February 2022.

1. On 21 February 2022, the Commission telephoned the applicant, unsuccessfully. A voice message was left via a voice-to-text service. The Commission requested the applicant return its call as the application fee remained unpaid, and provided the Commission’s Helpline number.

1. On 22 February 2022, the Commission sent a letter to the applicant and her representative which set out the fee payable, how to pay the fee and file a waiver application. The letter emphasised:

“If you don’t do this, your application may be dismissed. Please contact us if you have any questions about this.”

(emphasis in original)

1. Later that day, the Commission sent an SMS to the applicant requesting a call back to discuss the unpaid application fee.

1. On 8 March 2022, the Commission again telephoned the applicant, unsuccessfully, leaving another message via a voice-to-text service. The Commission advised the applicant that her matter may be dismissed if she did not pay the application fee.

1. On 10 March 2022 the Commission left another message with the applicant via the voice-to-text service advising that the application was in danger of being dismissed and to call the Commission urgently.

1. A letter was sent to the applicant, copying in her representative, the same day. The letter noted that the fee remained unpaid and advised that:

“If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting Matter Number C2022/1261.

In the absence of any advice from you within 7 days of the date of this letter, this application may be dismissed.”

(emphasis in original)

1. The matter was referred to my Chambers on 23 March 2022. My Chambers made several attempts to call the representative on 24 March 2022. My Chambers left a voice message requesting a call back and affirming that the matter may be dismissed.

1. On 29 March 2022, my Chambers called the representative again and left a message advising that it had not heard from either the representative or the applicant and the matter was being considered for dismissal for non-compliance. An attempt to call the applicant was also made, but it was unsuccessful, and no message was left.

1. Later that day, the representative responded to the Commission by email as follows:

“We confirm that we have called upon the Applicant on numerous occasions to attend to the payment /waiving of the filing fee. To date, our numerous emails have not been responded to nor has any of our telephone calls and voice messages been returned by the Applicant.

In the circumstances, in the absence of further instructions from the Applicant, we leave the matter in your hands.”

1. To date, the applicant has not paid the 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 $74.90. 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.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the lodgement fee or 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.

1. The application is dismissed.

DEPUTY PRESIDENT

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