Georgia Hill v Academy Appliance Rentals Pty Ltd

[2022] FWC 580

[2022] FWC 580

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Georgia Hill
v

Academy Appliance Rentals Pty Ltd

(C2022/993)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 16 MARCH 2022

Application to deal with contraventions involving dismissal – application dismissed

1. Ms Georgia Hill (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by Academy Appliance Rentals Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting her to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 7 February 2022. The application was lodged by the applicant’s representative.

1. On 8 February 2022, the Commission telephoned the applicant which was not answered. A voice message was left requesting a return call as the application fee remained unpaid. The Commission sent a letter to the applicant and her representative which set out the fee payable, how to pay the fee and how to apply for a fee waiver. The letter emphasised:

“If you don’t do this, your application may be dismissed. Please contact us if you have any questions about this.”

(emphasis in original)

1. On 24 February 2022, the Commission again telephoned the applicant, going straight to voicemail. The Commission left a detailed message advising the applicant that the fee remained unpaid, that it had not received any communication from her and that if she wishes to proceed she needed to make contact urgently.

1. On 3 March 2022 the Commission called:

(a)the applicant and left a voicemail advising her that she had 7 days to pay the fee before the matter was referred to a Member; and

(b)the representative advising that the Commission was following up payment of the application fee. The representative advised they would take a message and follow up with the applicant.

1. A letter was sent to the applicant, copying in her representative, later that day. The letter noted that the fee remained unpaid and advised that:

“If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting Matter Number C2022/993.

In the absence of any advice from you within 7 days of the date of this letter, this application may be dismissed.”

(emphasis in original)

1. On 11 March 2022, the Commission called the applicant, leaving a voicemail, and the representative advising them that the matter was being referred to a Member for consideration of the outstanding non-payment and waiver issue.

1. My Chambers called the applicant’s representative on 15 March 2022 and requested a response urgently as the matter was being considered for dismissal as set out in the Commission’s prior correspondence. After the call, the representative sent the following email to my Chambers:

“…

We have on numerous occasions attempted to contact the Applicant telephonically and via email. To date we have received no response from her. 

We do not have further instructions in the matter.”

1. To date, the applicant has not paid the 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 $74.90. 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 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.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the lodgement fee or 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.

DEPUTY PRESIDENT

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