Heather Milne v P.M.Lee & Co Lawyers Pty Ltd, GLG Legal
[2023] FWC 2111
•23 AUGUST 2023
| [2023] FWC 2111 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Heather Milne
v
P.M.Lee & Co Lawyers Pty Ltd, GLG Legal
(C2023/4601)
| VICE PRESIDENT CATANZARITI | SYDNEY, 23 AUGUST 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
On 4 August 2023, Ms Heather Milne (the Applicant) initiated an application under s 365 of the Fair Work Act 2009 (Cth) (the Act) via telephone. The Applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The Applicant did not complete the application by returning a filled-out Form F8. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The Applicant has not responded to correspondence from the Commission alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.
Context
On 4 August 2023, upon submitting her telephone application, the Applicant was informed that her application could not be completed via telephone, and that she had to return a completed Form F8 and either the prescribed lodgement fee or a waiver application within 14 days, or by 18 August 2023, or the matter may be referred to a member of the Commission and dismissed without further notice. On the same day, the Commission sent a letter to the Applicant’s nominated email address which reiterated the above instructions.
On 16 August 2023, the Commission attempted to contact the Applicant on her nominated phone number as it had not yet received either a completed Form F8 nor the prescribed fee or waiver application. The Applicant did not answer the call. A voicemail message was advising her that both a completed Form F8 and prescribed fee or waiver application must be submitted by close of business on 18 August 2023 or her matter would be at risk of being referred to a member of the Commission and dismissed.
To date, the Commission has not received any further contact from the Applicant, and she has not returned a completed application, paid the prescribed lodgement fee, or filed a completed waiver application.
Legislative framework
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 $77.80. The regulations also allow for an application to be made for the fee to be waived.
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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
The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.
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.
The application is dismissed.
VICE PRESIDENT
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