Imogen Corrie v Loddon Mallee housing service (LHMS)

[2023] FWC 1344

[2023] FWC 1344

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Imogen Corrie
v

Loddon Mallee housing service (LHMS)

(C2023/2150)

DEPUTY PRESIDENT CLANCY MELBOURNE, 7 JUNE 2023

Application to deal with contraventions involving dismissal – dismissed.

1. On 12 April 2023, Ms Imogen Corrie (Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Ms Corrie alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not signed by Ms Corrie and 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. At 12:44pm, on 20 April 2023, the Commission emailed a letter to Ms Corrie’s nominated email address advising her that her application needed to be signed and required payment of the application fee or a completed Form F80, if she wished to proceed with the application. The letter advised Ms Corrie that she had until Thursday, 4 May 2023, to provide her completed application.

1. At 3:10pm, on 20 April 2023, an SMS notification was also sent to Ms Corrie’s nominated telephone number. The SMS advised Ms Corrie that there was a problem with her Fair Work Commission case and requested that Mr Corrie call the Commission back.

1. A final attempt to contact Ms Corrie on her nominated telephone number was made by the Commission on 5 June 2023 to obtain payment or a completed Form F80, however, Ms Corrie could not be reached. A voicemail message was left explaining to Ms Corrie that her matter would be dismissed if she did not make contact with the Commission by the end of the day.

1. To date, Ms Corrie has not paid the application 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 $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. In considering all the circumstances, I am satisfied that the relevant application form 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. The many attempts by the Commission to contact Ms Corrie, the reminders and the multiple requests that have not been complied with leave me satisfied that it is appropriate in all of 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] PR762886.

Printed by authority of the Commonwealth Government Printer

<PR762884>