Dina Marcela Ramos Rivera v Woolworths Group Limited

[2024] FWC 1051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Dina Marcela Ramos Rivera
v

Woolworths Group Limited

(C2024/660)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 APRIL 2024

Application to deal with contraventions involving dismissal – application dismissed.

On 4 February 2024, Ms Dina Marcela Ramos Rivera (the Applicant) made an application under s365 of the Fair Work Act 2009 (Cth) (the Act). Ms Rivera alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

Ms River’s application was not accompanied by the application 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.

Context

On 5 February 2024 the Commission emailed correspondence to Ms Rivera’s nominated email address advising her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application.

On 27 February 2024, the Commission emailed correspondence again to Ms Rivera’s nominated email address reminding her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application.

On 14 March 2024, the Commission attempted to contact Ms Rivera on her nominated telephone number. A voicemail was left advising her that the application fee was required to be paid or she needed to provide a completed Form F80. Ms Rivera was requested to call back the Commission.

On 20 March 2024, a final attempt was made to contact Ms Rivera on her nominated telephone number. The call was not answered, and a voicemail was left that advising her that the application fee was required to be paid or a completed Form F80 provided.

To date, Ms Rivera has not responded to correspondence from the Commission, has not paid the application fee nor filed a completed Form F80.

Legislative framework

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 $83.30. The regulations also allow for an application to be made for the fee to be waived.

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 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.

Despite the numerous attempts by the Commission to contact Ms Rivera, she has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

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] PR773823.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Deputy President Clancy considered an application brought by Dina Marcela Ramos Rivera against Woolworths Group Limited. Ms Rivera alleged she had been dismissed by Woolworths in contravention of the general protections provisions of the Fair Work Act 2009. The application was made under section 365 of the Act but did not include the prescribed application fee or a completed Form F80 for a waiver of that fee. Despite several attempts by the Commission to contact Ms Rivera to request the missing fee or waiver form, she failed to respond. The Commission dismissed the application due to its non-compliance with the statutory requirements. The dismissal was pursuant to section 587(1)(a) of the Act, which allows the Commission to dismiss an application that is not made in accordance with the Act.

The primary legal issue before the Deputy President was whether the application complied with the requirements of the Fair Work Act and regulations. Specifically, the court needed to determine if the absence of the application fee or a waiver form rendered the application invalid. The Deputy President considered that section 367(1) of the Act required the application to be accompanied by the prescribed fee, and the failure to do so rendered the application non-compliant. Furthermore, section 587(1)(a) of the Act permits the dismissal of applications that are not made in accordance with the Act. Given the absence of the required fee and the failure of Ms Rivera to respond to multiple communications from the Commission, the Deputy President concluded that the application was not valid and could be dismissed.

Deputy President Clancy found that the application was not in compliance with the requirements of the Act because it did not include the prescribed application fee or a waiver form. Despite multiple attempts to contact Ms Rivera to request the missing information, she did not respond. The Deputy President was satisfied that the application was not valid and dismissed it under section 587(1)(a) of the Act. An order to this effect was issued with the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established