Deborah Ann Moor v Jacobs Group (Australia) Pty Ltd

[2022] FWC 332

[2022] FWC 332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Deborah Ann Moor
v

Jacobs Group (Australia) Pty Ltd

(C2021/8950)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 16 FEBRUARY 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Ms Deborah Ann Moor (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by Jacobs Group (Australia) Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not made in accordance with the procedural rules, and the lodgement fee remains unpaid. The applicant has not responded to correspondence from the Commission alerting her to these deficiencies, nor have the deficiencies been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was lodged on 24 December 2021. On 31 December 2021, the Commission sent to the applicant an email requesting that the application’s attachments be resent with the security restrictions removed from the files.

1. On 4 January 2022, the Commission telephoned the applicant. A voice message was left requesting a return call regarding the application. Subsequently, an email was sent to the applicant advising that the application was incomplete as pages 2 and 7 of the Form F8 were not attached and the application was not signed or dated. The email also stated that the application was made without payment of the required lodgement fee or a completed application for waiver form. The letter advised that if the deficiencies in the application were not remedied, the application may be dismissed within 14 days.

1. On 7 January 2022, the applicant emailed the Commission advising that she would resend the missing information the following day.

1. In the absence of further material from the applicant, the Commission telephoned the applicant on 25 January 2022. A voice message was left. The Commission also wrote to the applicant advising that the application was incomplete and the lodgement fee remained unpaid. The letter advised that the applicant had seven days to correct these deficiencies or the application may be dismissed.

1. To date, the applicant has not corrected the deficiencies with the application. She has not paid the lodgement fee or sought a waiver. The applicant has not made any submissions as to why the application should not be dismissed.

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. There are two respects in which the application is not made in accordance with the Act. First, s 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 signed and dated (rule 17). The application in the present matter was not signed and dated. It did not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

1. Secondly, 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.

The applicant has taken no action to address these deficiencies despite being notified by the Commission on multiple occasions that the application was incomplete and had not been accompanied by the required fee. 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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