Georgina Breed v Urbane Property (Qld) Pty Ltd T/A Samantha Jones Hair Company

[2019] FWC 769

[2019] FWC 769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Georgina Breed
v
Urbane Property (QLD) Pty Ltd T/A Samantha Jones Hair Company
(C2018/6722)

DEPUTY PRESIDENT KOVACIC CANBERRA, 22 FEBRUARY 2019

Application to deal with contraventions involving dismissal - application dismissed.

[1] Ms Georgina Breed (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 22 November 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Urbane Property (Qld) Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Breed’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 28 November 2018 the Commission contacted the Applicant to advise her that the lodgement fee remained unpaid. During the call, the Applicant advised she had “no funds at present”. This was followed up with a letter emailed to the Applicant and Applicant’s representative from the Commission advising that the Applicant could apply for a fee waiver. That same day the Commission also emailed a letter to the Respondent advising that they were awaiting further information from the Applicant before the application could be progressed.

[3] On 12 December 2018 the Commission tried to contact the Applicant and left a voicemail. A follow up letter was emailed on the same day to the Applicant requesting payment of the application fee or application for fee waiver.

[4] On 13 December 2018 the Commission contacted the Applicant regarding the payment. During the call, the Applicant advised that the payment would be finalised as soon as possible and was “aiming for this week”. This was followed up with an email to the Applicant stating:

“If you wish to proceed with your application please call the Commission to provide payment or send in a completed form F80 by the end of day 17th December 2019. I have attached a blank F80 for your convenience.

Alternatively if you wish to discontinue your application please lodge the form F50, also attached, or you may call me on my number below.”

[5] On the 14 January a further email was sent from the Commission to the Applicant and Applicant’s representative informing them that the lodgment fee remained unpaid and that the matter may be dismissed if payment, was not received or a fee waiver filed.

[6] No correspondence has been received from the Applicant or the Applicant’s representative since 13 December 2018.

[7] 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.”

[8] 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.”

[9] Ms Breed 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 s.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

<PR704685>