Jessica Christiansen v RACQ Insurance Limited

[2019] FWC 3913

[2019] FWC 3913

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jessica Christiansen
v
RACQ Insurance Limited
(C2019/2422)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 2 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Ms Jessica Christiansen (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by RACQ Insurance Limited (the Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (the Commission) on 11 April 2019 but was incomplete as no payment of the lodgement fee was made and no application for waiver of the lodgement fee (waiver application) was completed.

[2] On 12 April 2019, the Commission sent email correspondence to the Applicant advising the lodgement fee was unpaid and seeking payment within 14 days. A telephone call was made to the Applicant on the same day to advise that the lodgement fee was unpaid. During the telephone call, the Applicant advised she would pay the lodgement fee.

[3] On 14 May 2019 and 23 May 2019, the Commission made two more attempts to contact the Applicant by telephone to obtain payment of the lodgement fee. On both occasions the call was unanswered and no voicemail facility was available. Also, on 23 May 2019 the Commission sent email correspondence to the Applicant advising her that the lodgement fee remained unpaid and foreshadowing that the application may be dismissed in the absence of the lodgement fee being paid by 31 May 2019.

[4] No payment of the lodgement fee has been received from the Applicant.

[5] Section 587 of the Act provides:

“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.”

[6] 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.”

[7] The Applicant has failed to comply with s.367(1) of the Act. Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR709069>