Claire Brown v Claire Brown, Melissa Pigdon
[2024] FWC 3069
•21 NOVEMBER 2024
| [2024] FWC 3069 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Claire Brown
v
Claire Brown, Melissa Pigdon
(C2024/6800)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 21 NOVEMBER 2024 |
Application to deal with contraventions involving dismissal
On 23 September 2024, Ms Claire Brown lodged a Form F8 – General Protections Application involving dismissal (Form F8) under s 365 of the Fair Work Act 2009 (Act). Ms Brown alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was accompanied by payment of the application fee, as prescribed by the Fair Work Regulations 2009. The Form F8 was incomplete in that it did not contain contact details for service of the purported application on the Respondents. Further, Ms Brown included her own name and postal address as the details for the First Respondent. As contact person for the First Respondent she listed “Mrs Penny Mackillop family services” and provided a mobile telephone number. As an additional Respondent, Ms Brown named “Mrs Melissa Pigdon” with a different mobile telephone number and, again, her own (Ms Brown’s) postal address.
On 27 September 2024, the Commission attempted to contact Ms Brown on her nominated telephone number regarding her incomplete Form F8. Ms Brown could not be reached and there was no option to leave a voice message.
On 4 October 2024, the Commission contacted Ms Brown on her nominated telephone number and informed her that she had not provided the required Respondent details, and that she would need to file a Form F1 in order to correct her Form F8. The Commission followed up the telephone call to Ms Brown with an email to her nominated email address, the email attached a link to a blank Form F1 and stated:
“As per our call, you will need to resubmit an updated F8 form removing yourself as the respondent and adding the entity you wish for your case to be directed towards.
Alongside it, you will need to submit an F1 form which I have linked below.
[Form F1 link]
Within, you will need to describe the changes you are making and why you are doing so.
This should be relatively straightforward, stating the error made and the correct respondent you wish to name.
If you are having any trouble with the F1 form or are unsure what to write, do not hesitate to contact me using the details below.”
On 8 October 2024, the Commission contacted Ms Brown on her nominated telephone number. Mr Brown informed the Commission that she had been busy and unable to complete the Form F1 but that she was still intending to do so.
On 11 October 2024, the Commission sent Ms Brown an email requesting that she file a completed Form F1 and updated Form F8 as soon as possible. On 14 October 2024, Ms Brown replied to the Commission’s email, stating: “can you please forward me the form I need to complete”. On 15 October 2024, the Commission emailed Ms Brown an email attaching a link to a blank Form F1 and requested that Ms Brown file a completed Form F1 and an updated Form F8 by close of business on 16 October 2024.
On 25 October 2023, I caused correspondence to be sent from my Chambers to Ms Brown’s nominated email address, stating:
“We need you to confirm the correct details for the Respondents, in particular, the correct names for the Respondents, and their postal addresses and/or email addresses, so that we can send them a copy of your application.
On multiple occasions Commission staff members have asked you to provide a Form F1 and Amended Form F8 with the correct Respondent details. Most recently on 15 October you were sent the below correspondence requesting your response by 16 October 2024.
If you do not provide a completed F1 (blank F1 attached) and an amended Form F8 to these Chambers (copying in the intended Respondents) by 3pm on Friday, 1 November 2024, the Deputy President will consider whether your application should be dismissed without further notice.
Alternatively, if you no longer want to pursue your application, and you want to discontinue the matter, please advise Chambers by return email, and the matter will be closed with no further action required from you.”
To date Ms Brown has not clarified who she would like listed as the Respondents to her application, nor has she provided their required service details, or made any further contact with the Commission, despite being warned that her application was at risk of being dismissed.
Legislative framework
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
In considering all the circumstances, I am satisfied that the application form in question was not complete, and the application has not been made in accordance with the Act. Ms Brown has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. The Commission has not been made aware of any further countervailing circumstances impacting on Ms Brown’s capacity to respond to the Commission’s attempts to contact her or to provide a Form F1 and amended Form F8. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application in accordance with s.587(1)(a) of the Act.
The application is dismissed. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR780987.
Printed by authority of the Commonwealth Government Printer
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