Jessica Edwards v The Trustee for the Albergo & Co Trust

[2022] FWC 908

[2022] FWC 908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jessica Edwards
v

The Trustee for the Albergo & Co Trust

(C2022/1776)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 MAY 2022

Application to deal with contraventions involving dismissal

1. Ms Jessica Edwards (applicant) made a telephone application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by the respondent in contravention of the general protection provisions in Part 3-1 of the Act.

1. The applicant did not complete, nor sign, the written application prepared by the Commission. Nor did the Commission receive payment of the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations), or an application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting her to these deficiencies and nor have the deficiencies been rectified.

1. I have decided to dismiss the application for the following reasons.

Context

1. The application was made by telephone on 16 March 2022.

1. On 16 March 2022, the Commission sent correspondence to the applicant attaching a copy of a Form F8 application form produced by the Commission based on information provided by the applicant. The applicant was advised that her telephone application could not be processed until the written application was completed and signed by the applicant, and returned to the Commission within 14 days.[1] The correspondence also stated that the application would not be considered lodged until the application fee was paid or a waiver application received.

1. On 30 March 2022, the Commission telephoned the applicant. A voice message was left requesting the applicant telephone the Commission to discuss her application, which remained incomplete.

1. In the absence of a return call, the Commission telephoned the applicant again on 31 March 2022. The applicant answered but the call was disconnected. The Commission placed another call to the applicant, but the call was again answered and then disconnected.

1. On 1 April 2022, the Commission sent correspondence to the applicant advising that the application remained incomplete. The applicant was informed that if the deficiencies in the application were not remedied by close of business on 8 April 2022, the application may be dismissed.

1. To date, the Commission has not received a copy of the application completed and signed by the applicant. Nor has the Commission received payment of the lodgement fee or a completed waiver application. The applicant has not made any submissions addressing why her application should not be dismissed.

Consideration

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.

(emphasis added) 

1. There are two respects in which the application is not made in accordance with the Act. Firstly, s 585 of the Act states that an application to the Commission “must be in accordance with the procedural rules (if any) relating to applications of that kind.” The Fair Work Commission Rules 2013 require that a document lodged by a party be signed and dated.[2] The application in the present matter was not signed and dated. It did not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

1. Secondly, in relation to an application made pursuant to s 365 of the Act, s 367(1) states that an application ”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 lodgement fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. Both of these deficiencies engage s 587(1)(a) of the Act.

Disposition

1. The applicant has been advised by the Commission on multiple occasions that the application is incomplete and the required fee has not been paid. The applicant has taken no action to address these deficiencies or otherwise engage with the Commission. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

2. The application is dismissed.

DEPUTY PRESIDENT

[1] Fair Work Commission Rules 2013, Rule 9

[2] Rule 17. See also Rule 9

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