Courtney Dudley v Jacana Administration Pty Ltd

[2021] FWC 4939

[2021] FWC 4939

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Courtney Dudley
v
Jacana Administration Pty Ltd
(C2021/3651)

DEPUTY PRESIDENT COLMAN MELBOURNE, 13 AUGUST 2021

Application to deal with contraventions involving dismissal–application dismissed

[1] Ms Courtney Dudley (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Jacana Administration Pty Ltd (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 made in accordance with the procedural rules. The application is not dated and various fields are incomplete. The applicant has not responded to correspondence from the Commission alerting her to these deficiencies, nor has she rectified those deficiencies. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 25 June 2021. On 28 June 2021, the Commission sent to the applicant a letter stating that the application was incomplete because it was not dated, there appeared to be an error in the name of the respondent, it did not include the remedy sought and the actions which constituted the alleged contravention were not specified. The letter advised the applicant that unless the application was completed it may be dismissed. On 16 July 2021, the Commission sent to the applicant a further letter stating that the application remained incomplete and that if it was not completed within 7 days it may be dismissed.

[3] On 23 July 2021, the Commission received an email from the applicant stating that she could not access or edit the documents sent to her on 16 July 2021. The Commission responded to the applicant the same day providing the documents in three different formats and advising that the applicant must submit a completed application by no later than close of business 26 July 2021 or the application may be dismissed.

[4] To date, the applicant has not amended her application or provided the missing details. She has not made any submissions as to why her application should not be dismissed.

[5] 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.”

[6] Section 585 of the Act states that an application to the Commission ‘must be in accordance with the procedural rules (if any) relating to applications of that kind’. The Fair Work Commission Rules require that a document lodged by a party be dated (rule 17). The application in the present matter was not dated and various fields were left blank. The application does not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

[7] These deficiencies engage 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 was incomplete and has taken no action to address the deficiencies. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732722>