DECISION

Fair Work Act 2009
s.365—General protections

Gabriela Almeida Frois
v
Imagine That Photography Pty Ltd
(C2017/6985)

DEPUTY PRESIDENT KOVACIC

CANBERRA,12 FEBRUARY 2018

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

[1] Ms Gabriela Almeida Frois (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 December 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Imagine That Photography Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Frois’ application was incomplete in that sections of the application were unanswered and no payment or application for waiver of the lodgment fee was completed.

[2] On 18 December 2017 the Commission contacted Ms Frois via telephone and email regarding her application. Ms Frois was asked to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] The Commission subsequently attempted to contact Ms Frois and her representative on a number of occasions i.e. 4, 18 January and 1 February 2018 by telephone, letter and email regarding her application. On each occasion it was foreshadowed that Ms Frois’ application may be dismissed unless she completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Ms Frois the Commission has received no completed waiver form or lodgment fee payment.

[4] 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

(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.”

[5] 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

refunded.”

[6] Ms Frois 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.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Gabriela Almeida Frois as the applicant and Imagine That Photography Pty Ltd as the respondent. The dispute centred on an application by Frois to address alleged contraventions by the respondent involving dismissal, specifically focusing on the alleged unfair dismissal of Frois. The application was brought under the Fair Work Act 2009. The Commission was tasked with determining whether the application was valid and, if so, whether the respondent had contravened the Act.

The central legal issues the Commission needed to resolve were whether the application by Frois was validly made and whether the respondent had indeed contravened the Act by unfairly dismissing Frois. The Commission examined the procedural validity of the application, considering whether Frois had complied with the necessary requirements and timelines under the Act. Additionally, the Commission assessed the merits of Frois's claim regarding the dismissal, including whether the dismissal was indeed unfair and whether the respondent had a valid reason for the termination.

Upon examining the application, the Commission found that Frois had not satisfied the procedural requirements necessary to make a valid application under the Act. Consequently, the Commission dismissed the application on the grounds of invalidity. The Commission determined that the application did not meet the statutory criteria for an application to deal with contraventions involving dismissal, and as such, it could not proceed to the merits of Frois's claims. The Commission concluded that the application was not validly made and, therefore, the application was dismissed.

No further orders were made by the Commission, as the dismissal of the application on the grounds of invalidity precluded the need to address the merits of the unfair dismissal claim. The decision underscored the importance of strict compliance with procedural requirements when lodging applications under the Fair Work Act.

Gabriela Almeida Frois v Imagine That Photography Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established