Holly Smoother v Aj Physio Pty Ltd

[2023] FWC 1705

[2023] FWC 1705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Holly Smoother
v

Aj Physio Pty Ltd

(C2023/1892)

VICE PRESIDENT CATANZARITI SYDNEY, 13 JULY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 3 April 2023, Miss Holly Smoother (applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The applicant 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 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. On 6 April 2023, the Commission emailed correspondence to Miss Smoother’s nominated email address advising that her application required payment of the filing fee or a completed waiver form 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. An SMS notification was also sent to Miss Smoother’s nominated telephone number on 7 April 2023. The SMS advised Miss Smoother to take action in compliance with the email from the Commission regarding payment of the application fee.

1. An attempt to contact Miss Smoother on her nominated telephone number was made by the Commission on 13 April 2023 to obtain payment or a completed waiver form. The call was not answered, and there was no facility allowing a voicemail to be left.

1. On 13 April 2023, the Commission emailed correspondence to Miss Smoother’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The email directed Miss Smoother to pay the filing fee (or apply to have the fee waived) by close of business on 13 April 2023.

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 $77.80. 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. 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.

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.

1. The application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR764215>