Emmie Kennedy v Unknown

[2025] FWC 135

[2025] FWC 135

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Emmie Kennedy
v

Unknown

(C2024/9145)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 JANUARY 2025

Application to deal with contraventions involving dismissal

1. On 15 December 2024, Ms Emmie Kennedy lodged a Form F8 – General Protections Application involving dismissal (Form F8) under s 365 of the Fair Work Act 2009 (Act). Ms Kennedy alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by payment of the application fee, as prescribed by the Fair Work Regulations 2009. The Form F8 was incomplete, in that it did not contain any details for the Respondent under the relevant “The employer” section of the Form F8. Ms Kennedy did provide details, for who she may have intended to be the Respondent under the section for “industrial association”, however it is not clear if this is the intended Respondent.

1. On 18 December 2024, at 9:54am, the Commission contacted Ms Kennedy on her nominated telephone number and informed her that she had not provided the required Respondent details, nor made payment of the application fee or provided a Form F80. Ms Kennedy was advised that should she wish the continue with her application she would need to file a completed Form F8 and pay the application fee or file a complete Form F80. Ms Kennedy advised that she would file a Form F80 with an amended Form F8. Later that day, at 10:22am, Ms Kennedy called the Commission to advise that she wished to apply for a fee waiver. Ms Kennedy was informed that the Commission would send her an “incomplete application” letter to her nominated email address, and Ms Kennedy was advised to reply to that email with a completed Form F8 and Form F80. At 10:31am, the Commission sent the “incomplete application” letter to Ms Kennedy’s nominated email address. The letter advised that the Respondent’s details needed to be provided and that the application fee needed to be paid before Ms Kennedy’s case could go any further. The correspondence outlined ways to pay and included information about applying to have the fee waived, including a link to a Form F80. The correspondence noted that the Commission needed to hear from Ms Kennedy by 2 January 2025. The correspondence also had a stamp at the top of the letter highlighting “Action required We need to hear from you within 14 days”. At 12:29pm, an SMS was sent to Ms Kennedy’s nominated telephone number, requesting that she contact the Commission.

1. On 30 December 2024, the Commission attempted to contact Ms Kennedy on her nominated telephone number. The call was not answered, and a voicemail message was left requesting that Ms Kennedy contact the Commission regarding her incomplete application.

1. On 3 January 2025 the Commission attempted to contact Ms Kennedy on her nominated telephone number. The call was not answered, and a voicemail message was left requesting that Ms Kennedy contact the Commission regarding her incomplete application and warning Ms Kennedy that if the issues with her application were not rectified by close of business, her application would be at risk of being dismissed.

1. A final attempt to contact Ms Kennedy was made on 7 January 2024. The call to Ms Kennedy’s nominated telephone number was not answered and a voicemail message was left advising Ms Kennedy that she had until 12pm to contact the Commission, as her application was at risk of being dismissed.

1. To date Ms Kennedy has not indicated who she would like listed as the Respondent to her application, nor has she paid the application fee or filed a Form F80. Ms Kennedy has not made any further contact with the Commission, despite being warned that her application was at risk of being dismissed.

Legislative framework

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.

Consideration and conclusion

1. In considering all the circumstances, I am satisfied that the application form in question was not complete, and the application has not been made in accordance with the Act. Ms Kennedy has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. The Commission has not been made aware of any further countervailing circumstances impacting on Ms Kennedy’s capacity to respond to the Commission’s attempts to contact her or to provide Form F80 and amended Form F8. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application in accordance with s.587(1)(a) of the Act.

1. The application is dismissed. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR783295.

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<PR783294>