Jayne Flanagan v JBH Caring Souls Pty Ltd

[2024] FWC 960

[2024] FWC 960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jayne Flanagan
v

JBH Caring Souls Pty Ltd

(C2024/658)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 APRIL 2024

Application to deal with contraventions involving dismissal – application dismissed.

1. On 4 February 2024, Ms Jayne Flanagan made an application under s365 of the Fair Work Act 2009 (Cth) (the Act). Ms Flanagan alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. Ms Flanagan’s application 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.

Context

1. On 5 February 2024, the Commission emailed correspondence to Ms Flanagan’s nominated email address advising her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her 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. On 7 February 2024, the Commission emailed correspondence to Ms Flanagan’s nominated email address reminding her that her application required payment of the filing fee or a completed Form F80 if she wished to proceed with her application.

1. On 19 February 2024, the Commission attempted to contact Ms Flanagan on her nominated telephone number. A voicemail was left advising her that her application fee was still outstanding and requesting that she call the Commission to make payment.

1. On 27 February 2024, the Commission attempted to contact Ms Flanagan’s representative, Employee Dismissals. A voicemail message was left advising that Ms Flanagan’s matter was at risk of being dismissed if no payment was received or a Form F80 completed by close of business on 1 March 2024.

1. A final attempt to contact Ms Flanagan on her nominated telephone number was made by the Commission on 15 March 2024. The call was not answered, and a voicemail message was left advising Ms Flanagan that her matter was at risk of being dismissed if the Commission did not receive a response from her by close of business on 15 March 2024. Later that day, the Commission also attempted to call Employee Dismissals. The call was not answered, and a voicemail message was left advising Employee Dismissals that payment of the required fee was still outstanding. The Commission further advised that the matter was at risk of being dismissed if the Commission did not receive a response from Employee Dismissals or Ms Flanagan by close of business that day.  

1. On 18 March 2024, the Commission sent an email to Employee Dismissals, advising that payment or a completed Form F80 was required by close of business 19 March 2024 or the matter may be dismissed. To date, Ms Flanagan has not paid the application fee, nor 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 $83.30. 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 application form in question 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. Despite the numerous attempts by the Commission to contact both Ms Flanagan and Employee Dismissal, the reminders, and multiple requests, neither Ms Flanagan nor Employee Dismissals, have responded. I am satisfied that it is appropriate in all 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] PR773464.

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