Fiona Chambers v Wirriminna Pastoral Ltd

[2019] FWC 7043

[2019] FWC 7043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Fiona Chambers
v
Wirriminna Pastoral Ltd

(C2019/2247)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Ms Fiona Chambers (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that she had been dismissed by Wirriminna Pastoral Ltd (Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (Commission) on 4 April 2019 but was incomplete, as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[2] On 5 April 2019, the Commission telephoned the Applicant. A voicemail was left seeking payment of the lodgement fee or a completed waiver application. On the same day, the Commission sent an email to the Applicant notifying her that the application was incomplete and provided 14 days for the lodgement fee to be paid or a waiver application to be completed.

[3] On 13 May 2019, the Commission telephoned the Applicant as the application remained incomplete. A voicemail message was left requesting a return call. A letter was sent by registered post the same day foreshadowing that the application may be dismissed unless the lodgement fee was paid or a completed waiver application was received.

[4] On 22 May 2019, the Commission made a further attempt to contact the Applicant by telephone regarding the application, which remained incomplete. A voicemail requesting the Applicant telephone the Commission urgently was converted to a text message.

[5] To date, the Commission has not received payment of the lodgement fee or a completed waiver application from the Applicant.

[6] Section 587 of the Act provides:

“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.”

[7] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[8] The Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a). An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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