Flora Bourdopoulos v Mandarin World Tours Pty Ltd T/A MW Tours

[2017] FWC 6636

[2017] FWC 6636

The attached document replaces the document previously issued with the above code on 12 December 2017.

In paragraph [6] the word ‘his’ is replaced with ‘her’

Michelle Robinson
Associate to Deputy President Kovacic

Dated 12 December 2017

[2017] FWC 6636

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Flora Bourdopoulos

v

Mandarin World Tours Pty Ltd T/A MW Tours

(C2016/7261)

deputy president kovacic CANBERRA, 12 DECEMBER 2017

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

1. Ms Flora Bourdopoulos (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 9 December 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Mandarin World Tours Pty Ltd T/A MW Tours (the Respondent) in contravention of the general protections provisions in the Act. Ms Bourdopoulos’ application was incomplete in that sections of the application were unanswered and no payment or application for waiver of the lodgment fee was provided.

1. On 12 December 2016 the Commission contacted Ms Bourdopoulos via telephone to advise that her application was unpaid and incomplete. Ms Bourdopoulos did not answer the call and subsequently a voice message was left asking her to provide the Commission with a completed waiver form or lodgment fee. Ms Bourdopoulos returned the call that day and requested that a copy of the application be emailed to her – a copy of the application was then emailed to the Applicant and correspondence asking her to provide the Commission with a completed application along with a completed waiver form or lodgment fee within 14 days or the application may be dismissed.

1. The Commission subsequently attempted to contact Ms Bourdopoulos on two occasions, i.e. 3 March and 1 December 2017, by telephone and email regarding her application. On each occasion it was foreshadowed that Ms Bourdopoulos’ application may be dismissed unless she completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Ms Bourdopoulos the Commission has received no completed waiver form or lodgment fee payment.

1. 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.”

1. 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.”

1. Ms Bourdopoulos has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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