Jennifer Wright v Pine River Learning and Development Centre (Syntec Pty Ltd)

[2021] FWC 1157

[2021] FWC 1157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jennifer Wright
v
Pine River Learning and Development Centre (Syntec Pty Ltd)
(C2020/7965)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 MARCH 2021

Application to deal with contraventions involving dismissal.

[1] Ms Jennifer Wright (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by Pine River Learning and Development Centre (Syntec Pty Ltd) 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 26 October 2020.

[4] On 27 October 2020, the Commission contacted the Applicant regarding the unpaid lodgement fee as follows:

(a) by telephone at 2.16 pm. The call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission regarding the unpaid lodgement fee.

(b) by letter emailed to the Applicant at 2.17 pm, advising the Applicant that she must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed.

(c) by SMS text message at 4.01 pm to the Applicant’s nominated contact number requesting the Applicant contact the Commission because of a problem with her application.

[5] On 10 November 2020, the Commission telephoned the Applicant. A voicemail message was left advising the Applicant that unless the lodgement fee was paid or a completed waiver application was received, the application may be dismissed. It was requested that the Applicant contact the Commission.

[6] On 11 November 2020 the Commission contacted the Applicant as follows:

(a) by telephone at 10.43 am. The call was unanswered and there was no option to leave a voicemail message.

(b) by letter emailed to the Applicant at 11.55 am, advising the Applicant that she must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

(c) by SMS text message at 1.03 pm to the Applicant’s nominated contact number requesting the Applicant contact the Commission regarding her incomplete application.

[7] Later that day, the Applicant emailed the Commission requesting a link to effect payment of the lodgement fee. By reply email, the Applicant was advised that payment could not be processed in the manner proposed. In a further email, the Applicant advised that she was not available by telephone during the Commission’s business hours to effect payment of the lodgement fee.

[8] Accordingly, on 12 November 2020 the Commission telephoned the Applicant after business hours at approximately 6.27 pm, 6.31 pm and 7.14 pm. The call was unanswered on each occasion, and a voicemail message was left asking the Applicant to contact the Commission.

[9] On 21 December 2020 the Commission telephoned the Applicant, and a voicemail message was left requesting the Applicant telephone the Commission as soon as possible.

[10] On 16 February 2021, the Commission emailed a letter to the Applicant advising that unless the lodgement fee is paid or a completed waiver application is filed by 2 March 2021, the application may be dismissed. Subsequently, the Applicant emailed the Commission material in respect of her application.

[11] That day, the Commission sent a SMS text message to the Applicant’s nominated contact number requesting the Applicant contact the Commission because of a problem with her application.

[12] On 25 February 2021, an email was sent to the Applicant restating the matters addressed in the Commission’s 16 February 2021 letter, and which responded to the correspondence trail in which the Applicant had filed material.

[13] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[14] 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)

[15] 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

[16] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[17] 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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