Chyna Renae Hovi-Travis v WPPC Pty Ltd

[2023] FWC 986

[2023] FWC 986

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Chyna Renae Hovi-Travis
v

WPPC Pty Ltd

(C2023/1902)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 APRIL 2023

Application to deal with contraventions involving dismissal

1. On 3 April 2023, Ms Chyna Renae Hovi-Travis (Applicant) made an application under s365 of the Fair Work Act 2009 (Cth) (Act). Ms Hovi-Travis alleges that she was 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).  Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. On 6 April 2023, the Commission attempted to contact Ms Hovi-Travis on her nominated telephone number and left a voice message advising her that her Form F80 was incomplete, and a signed Form F80 would need to be returned. The Commission also emailed correspondence to Ms Hovi-Travis’ nominated email address advising her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. The email further stated as follows:

“Remember you have until 20 April 2023 to complete your application.”

1. An SMS notification was also sent to Ms Hovi-Travis’ nominated telephone number on 6 April 2023. The SMS advised Ms Hovi-Travis to call the Commission in relation to her incomplete matter.

1. On 11 April 2023, the Commission emailed correspondence to Ms Hovi-Travis’ nominated email address reminding her that her application required payment of the application fee or a Form F80 if she wished to proceed with her application. The correspondence instructed Ms Hovi-Travis on how to pay the application fee or complete the Form F80, and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

1. A final attempt to contact Ms Hovi-Travis on her nominated telephone number was made by the Commission on 19 April 2023. The call was not answered, and a voicemail message was left advising Ms Hovi-Travis that payment of the required fee was still outstanding, and her matter was at risk of being dismissed.

1. To date, Ms Hovi-Travis has not paid the application fee or filed a completed Form F80.

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.

Consideration and conclusion

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. The many attempts by the Commission to contact Ms Hovi-Travis, the numerous reminders and the multiple requests that have not been complied with leave me satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

1. The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR761404.

Printed by authority of the Commonwealth Government Printer

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