Hee Jung (Jenny) Kim v The Trustee for the Salvation Army (NSW) Social Work

[2019] FWC 1231

[2019] FWC 1231

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Hee Jung (Jenny) Kim
v
The Trustee for THE SALVATION ARMY (NSW) SOCIAL WORK
(C2018/6727)

VICE PRESIDENT CATANZARITI SYDNEY, 25 FEBRUARY 2019

Application to deal with other contraventions dispute.

[1] Ms Hee Jung (Jenny) Kim (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 28 November 2018 under s.372 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute involving The Trustee for THE SALVATION ARMY (NSW) SOCIAL WORK (the Respondent).

[2] On 29 November 2018 the Commission was unsuccessful in contacting the Applicant via telephone at two different times of the day. The Commission was unable to leave a voicemail on both occasions. This was followed up by a letter emailed to the Applicant from the Commission stating:

“This application was made without payment of the application fee of $71.90. You can apply to have the application fee waived if paying the fee would cause you serious hardship. The Form F80 - Waiver of application fee is attached.

….

In the absence of any advice from you within 14 days of the date of this letter, this application may be dismissed.” (Emphasis in original)

[3] On 10 December 2018 the Commission was again unsuccessful in contacting the Applicant via telephone and was unable to leave a voicemail. The Commission also contacted the law firm listed for the Applicant’s named Representative and the firm advised that there was no individual of the name listed as the named Representative working at the firm. The Commission emailed the named Representative directly via the email address listed in the application. The Commission again emailed the Applicant, requesting payment of the application fee or application for fee waiver.

[4] On 8 January 2019 the Commission emailed the Respondent advising that they were awaiting further information from the Applicant before the application could be progressed.

[5] No correspondence has been received from the Applicant since the lodgement of the Application and the Applicant’s named Representative has also not made contract.

[6] 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.

[7] In relation to an application made pursuant to s.372 of the Act, s.373 provides:

“373 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 372; 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.”

[8] The Applicant has failed to comply with s.373 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 this effect will be issued separately.

VICE PRESIDENT

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