Dannielle Phillips v Starlight Retail

[2017] FWC 1147

[2017] FWC 1147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dannielle Phillips
v
Starlight Retail
(C2017/28)

MELBOURNE, 27 FEBRUARY 2017

Application to deal with contraventions involving dismissal.

[1] On 3 January 2017, the Fair Work Commission (the Commission) telephoned the applicant regarding her incomplete application, however no contact was made and a voice message was left. Correspondence was sent to the applicant confirming that her application was incomplete. The applicant was given 14 days to provide the necessary documentation.

[2] On 13 January 2017, an attempt to contact Ms Phillips by telephone was unsuccessful and a voice message was left.

[3] On 16 January 2017, the Commission received a call from the applicant, and the Commission confirmed that Ms Phillips needed to submit a completed application and waiver. The applicant was advised that this information could not be taken over the phone and must be provided in writing. The application form and a blank waiver form were resent to the applicant on her request.

[4] On 17 January 2017, Ms Phillips was sent further correspondence again advising that her application was incomplete. The applicant was advised that in the absence of advice from her, the application may be dismissed.

[5] On 27 January 2017, an attempt to contact Ms Phillips by telephone was unsuccessful and a voice message was left advising that her application remains incomplete.

[6] On 31 January 2017, a final attempt to contact Ms Phillips by telephone was unsuccessful and a voice message was left requesting that the applicant urgently contact the Brisbane Registry of the Fair Work Commission.

[7] No response has been received from the applicant and the application remains incomplete.

[8] Section 587 of the Act provides: “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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[9] In relation to an application made pursuant to s.365 of the Act, s.367 provides: “367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations. (2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or

refunded.”

[10] Ms Phillips has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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