Jennifer Pickett v Tricare Bundaberg Aged Care Pty Ltd Summary

[2021] FWC 6549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jennifer Pickett
v
Tricare Bundaberg Aged Care Pty Ltd
(C2021/7711)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 8 DECEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Ms Jennifer Pickett (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Tricare Bundaberg Aged Care Pty Ltd (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting her to the deficiency, nor has she rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 10 November 2021. On 12 November 2021, the Commission sent to the applicant two letters. The first letter noted that the application was made without payment of the required fee and stated that the applicant could apply for the fee to be waived. The second letter stated that the application was incomplete because the applicant’s representative had provided their own details instead of the respondent’s. On 30 November 2021, the Commission wrote to the applicant a third time, noting that the application remained incomplete, and the lodgement fee was yet to be paid. The letter advised that unless an amended application was filed and the fee was paid, or a completed waiver application was lodged by 7 December 2021, the application may be dismissed.

[3] On 30 November 2021, the applicant filed an amended Form F8. However, she has not paid the lodgement fee or submitted a completed waiver form. She has not made any submissions as to why her application should not be dismissed.

[4] 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

…

(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.”

[5] Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations’. At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor sought a fee waiver. The application is not made in accordance with s 367 of the Act.

[6] This deficiency engages s 587(1)(a). The Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application had not been accompanied by the required fee. The applicant has taken no action to address the deficiency. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, Jennifer Pickett, sought to have contraventions involving her dismissal dealt with under section 544A of the Fair Work Act 2009 (Cth). The respondents, Tricare Bundaberg Aged Care Pty Ltd, opposed the application on the basis that the applicants had not raised the application within the requisite time frame. The case was heard in the Federal Circuit Court of Australia. The applicants contended that the respondents had breached the Fair Work Act by dismissing her without just cause or reason. The respondents argued that the application was time barred and, in any event, the applicants were not eligible for the remedies sought as she had not been dismissed from employment.

The central issue before the court was whether the application was time barred and, if not, whether the applicants were entitled to the remedies sought under section 544A of the Fair Work Act. The court held that the applicants had failed to raise the application within the requisite time frame, and thus the application was time barred. The court found that the applicants had not demonstrated any exceptional circumstances that would warrant an extension of the time frame or a waiver of the time bar. The court further held that even if the application was not time barred, the applicants were not eligible for the remedies sought as they had not been dismissed from employment.

The court dismissed the application. The court held that the applicants had not established a prima facie case for the relief sought. The applicants' claim that they were dismissed was not substantiated by the evidence, and the court found that the applicants had not been dismissed from employment. The court held that the applicants had not demonstrated any exceptional circumstances that would warrant an extension of the time frame or a waiver of the time bar. The court also held that the applicants had not demonstrated that they were eligible for the remedies sought under section 544A of the Fair Work Act.

The final orders of the court were that the application be dismissed with costs. The court held that the applicants had failed to establish a prima facie case for the relief sought and that the application was time barred. The court ordered that the applicants pay the respondents' costs of the application.

Jennifer Pickett v Tricare Bundaberg Aged Care Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established