Dina Marcela Ramos Rivera v Woolworths Group Limited
[2024] FWC 1051
•23 APRIL 2024
| [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.
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