Jacinta Rule v Moorditch Gurlongga Association Inc

[2021] FWC 907

[2021] FWC 907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jacinta Rule
v
Moorditch Gurlongga Association Inc
(C2020/6652)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mrs Jacinta Rule (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by Moorditch Gurlongga Association Inc in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 28 August 2020.

[4] On 31 August 2020, the Commission telephoned the Applicant regarding the unpaid lodgement fee. During the call, the Applicant requested that she be provided a copy of the application for waiver of the lodgement fee (waiver application). That day, a letter was emailed to the Applicant advising that she must pay the lodgement fee or file the enclosed waiver application within 14 days, or the application may be dismissed.

[5] On 14 September 2020, the Commission telephoned the Applicant on two separate occasions. On each occasion the call was unanswered, and a voicemail message was left advising the Applicant that her application may be dismissed unless she makes payment of the lodgement fee or files a completed waiver application. The Applicant was requested to contact the Commission.

[6] On 17 September 2020, a letter was emailed to the Applicant and her representative Mr Michael Fredericks of Employee Dismissal Claims. In the letter, the Applicant was provided a further period of 14 days to pay the lodgement fee or file a completed waiver application, failing which the application may be dismissed. A SMS text message was also sent to the Applicant’s nominated contact number requesting that she contact the Commission because of a problem with her application.

[7] Later that day, the Commission telephoned the Applicant. A voicemail message was left advising that the application remained incomplete.

[8] On 25 September 2020, Mr John Bingham of Employee Dismissal Claims contacted the Commission regarding the lodgement fee. During the call, Mr Bingham advised that the lodgement fee would not be paid on behalf of the Applicant.

[9] On 9 October 2020, Mr Bingham contacted the Commission regarding the application. He was advised that the application remained incomplete.

[10] To date, neither the Applicant nor her representative have paid the lodgement fee or filed a completed waiver application.

Legislative framework

[11] In relation to an application made pursuant to s 365 of the Act, s 367 provides:

367 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 365; 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.

(emphasis added)

[12] Section 587 of the Act provides that:

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.

(emphasis added)

Consideration and conclusion

[13] Despite the Commission’s attempts to progress the application, the Applicant and her representative have failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[14] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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