Hannah Hurst v Minerp Holdings Pty Ltd

[2023] FWC 2841

[2023] FWC 2841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Hannah Hurst
v

Minerp Holdings Pty Ltd

(C2023/6179)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 OCTOBER 2023

Application to deal with contraventions involving dismissal- application dismissed.

1. On 9 October 2023, Mrs Hannah Hurst (Applicant) made an application under s365 of the Fair Work Act 2009 (Cth)(Act). Ms Hurst alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations).  Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. On 12 October 2023, the Commission emailed correspondence to Mrs Hurst’s nominated email address advising her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with the application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

…

If you don’t make payment within 7 days your application may be dismissed.”

1. On 16 October 2023, the Commission emailed further correspondence to Mrs Hurst’s nominated email address reminding her that her application required payment of the filing fee or a completed waiver Form F80 if she wished to proceed with the application. The correspondence instructed the Applicant on how to pay the application fee or complete a Form F80 and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

1. On 19 October 2023 an attempt was made by the Commission to contact Mrs Hurst on her nominated telephone number to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mrs Hurst that payment of the required fee was still outstanding.

1. On 23 October 2023 a final attempt was made by the Commission to contact Mrs Hurst on her nominated telephone number. The call was not answered, and a voicemail message was left advising Mrs Hurst that payment of the required fee was still outstanding and her application may be dismissed if payment or a completed Form F80 is not received.

1. To date, Mrs Hurst has not paid the lodgement fee or filed a completed Form F80.

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 $83.30. 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.

Consideration and conclusion

1. In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the attempts by the Commission to contact her, the reminders and multiple requests, Mrs Hurst has not responded.  In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. 

1. The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR767719.

Printed by authority of the Commonwealth Government Printer

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