Jessie-Lee (Hannah) Murphy v Vita People Pty Ltd

[2019] FWC 2134

[2019] FWC 2134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jessie-Lee (Hannah) Murphy
v
Vita People Pty Ltd
(C2019/457)

DEPUTY PRESIDENT KOVACIC CANBERRA, 4 APRIL 2019

Application to deal with contraventions involving dismissal.

[1] Ms Jessie-Lee Murphy (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 17 January 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Vita People Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Breed’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 17 January 2019 the Commission contacted the Applicant to advise her that the lodgment fee remained unpaid. During the call, the Applicant refused to give her full credit card details over the phone and stated she had received an email where she could pay the fee online. The email the Applicant referred to was not from the Commission and the Applicant was advised of this, the Applicant was also advised to contact her legal representative in relation to this email. The Commission subsequently emailed a letter to the Applicant and the Applicant’s representative with a copy of the waiver form. That same day, the Commission also emailed a letter to the Respondent advising that the Commission was awaiting further information from the Applicant before her application could be progressed.

[3] On 31 January 2019 the Commission contacted the Applicant regarding her application and the Applicant was advised she could apply for a fee waiver, a form sent to her in the correspondence of 17 January 2019. The Applicant said she had not received this form. During the call it was confirmed that the correspondence sent to the Applicant from the Commission on 17 January 2019 contained a typographical error in the Applicant’s email address. The email of 17 January 2019 was resent on 31 January 2019 to the correct email address of the Applicant.

[4] On 15 February 2019, the Commission tried to contact the Applicant and left a voicemail informing the Applicant that she had until close business Monday 18 February 2019 to provide a payment for her application or to apply for a fee waiver.

[5] On 20 February the Applicant emailed the Commission and said she had attempted to send the waiver by email to the Commission. The Applicant requested that a F80 be sent to her by post. That same day, the Commission sent a F80 by post to the Applicant.

[6] The Commission subsequently attempted to contact the Applicant on 28 February and 13, 14 and 21 March 2019 regarding her application. On each occasion, it was foreshadowed that Ms Murphy’s application may be dismissed unless she completed either the waiver form or paid the lodgment fee. A letter was also sent by registered post on 14 March 2019.

[7] On 21 March 2019 the Commission advised a representative of the Applicant that the Applicant had until close of business that day to pay the lodgment fee or for an application for fee waiver to be submitted. That same day a different representative of the Applicant’s contacted the Commission and advised that they would be following up with the Applicant regarding the payment or application for a fee waiver.

[8] No correspondence or payment has been received from the Applicant or the Applicant’s representative since 22 March 2019.

[9] 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.”

[10] 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.”

[11] Ms Murphy has failed to comply with s.367(1) of the Act. Accordingly, her 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.

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