Emily Doble v Amanda Barton

[2023] FWC 1958

[2023] FWC 1958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Emily Doble
v

Amanda Barton

(C2023/3895)

VICE PRESIDENT CATANZARITI SYDNEY, 7 AUGUST 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 3 July 2023, Ms Emily Doble (the Applicant) made an application under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was incomplete as Questions 3.1, 3.2 and 3.3 on the Applicant’s Form F8 were not filled out. Moreover, the application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The Applicant has not responded to correspondence from the Commission alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.

Context

1. On 5 July 2023, the Commission sent an application acknowledgement letter to the Applicant at her nominated email address. The Commission also sent a further letter to the Applicant’s nominated email address alerting her to the fact that her application was incomplete. The Applicant was requested to complete Questions 3.1, 3.2 and 3.3 on her Form F8 and either pay the required lodgement fee or return a completed Form F80 waiver application by 22 July 2023 for her matter to progress.

1. Also on 5 July 2023, the Commission called the Applicant at her nominated phone number, but the call was not answered. A voice message was left inviting the Applicant to contact the Commission at a callback number. An SMS was also sent to the Applicant on the same day, requesting a call back regarding her incomplete application.

1. On 12 July 2023, the Applicant returned a Form F8 to the Commission, but it was unmodified from its original submitted form; Questions 3.1, 3.2 and 3.3 were still incomplete.

1. On 14 July 2023, the Commission called the Applicant at her nominated phone number, but the call was not answered. A voice message was left requesting that the Applicant urgently contact the Commission at a callback number regarding her incomplete application.

1. On 19 July 2023, the Commission called the Applicant at her nominated phone number, but the call was not answered. A voice message was left requesting that the Applicant urgently contact the Commission at a callback number regarding her incomplete application.

1. Also on 19 July 2023, the Applicant again returned a Form F8 to the Commission, but it remained unmodified from its original submitted form; Questions 3.1, 3.2 and 3.3 were still incomplete.

1. On 25 July 2023, the Commission called the Applicant at her nominated phone number, but the call was not answered. A voice message was left requesting that the Applicant urgently contact the Commission at a callback number regarding her incomplete application, otherwise her matter would be referred to a Commission member and very likely dismissed.

1. On 27 July 2023, the Commission called the Applicant at her nominated phone number, but the call was not answered. On the same day, the Commission sent a letter via Express Post to the Applicant’s nominated mailing address alerting her to the deficiencies in her application. The letter requested that the Applicant complete Questions 3.1, 3.2 and 3.3 on her Form F8 and either pay the required lodgement fee or return a completed Form F80 waiver application by 3 August 2023. An email containing the same letter was also sent to the Applicant’s nominated email address.

1. On 4 August 2023, the Commission made a final attempt to call the Applicant at her nominated phone number, but the call was not answered.

1. To date, the Applicant has not returned a completed application, paid the required lodgement fee, or filed a completed waiver application.

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 $77.80. 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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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

1. The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.

2. The application is dismissed.

VICE PRESIDENT

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