Jody Elliot v Big W

[2021] FWC 607

[2021] FWC 607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jody Elliot
v
Big W
(C2021/7)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Ms Jody Elliot (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by Big W 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 4 January 2021. That day, the Commission telephoned the Applicant regarding the unpaid lodgement fee. During the call the Applicant was advised that except for providing a signature, the filed application for waiver of the lodgement fee (waiver application) had not been completed. The Applicant indicated that she was unavailable to address this matter at the time of the call. The Applicant was requested to contact the Commission at an alternative time.

[4] The same day, a letter was emailed to the Applicant advising that she must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

[5] On 20 and 21 January 2021, the Commission telephoned the Applicant. On each occasion, a voicemail message was left requesting the Applicant telephone the Commission and which advised the Applicant that unless the lodgement fee was paid or a completed waiver application was received, the application may be dismissed.

[6] On 21 January 2021, the Commission emailed a letter to the Applicant advising that she must pay the lodgement fee or file a completed waiver application within seven days, or the application may be dismissed. Later that day, the Applicant telephoned the Commission. During the call, the Applicant advised that she intended to complete and file the waiver application as soon as possible. A copy of a blank waiver form was emailed to the Applicant for completion. A SMS text message was also sent to the Applicant regarding her incomplete application.

[7] On 28 January 2021, the Commission telephoned the Applicant. During the call, the Applicant advised that a blank waiver form had not been emailed to her. The Commission sent further correspondence to the Applicant’s nominated email address attaching the waiver form. The Applicant confirmed receipt of the form by telephone. During the call, the Applicant was advised that her application may be dismissed if it remained incomplete.

[8] In the absence of payment of the lodgement fee or receipt of a completed waiver application, the Commission telephoned the Applicant on 17 February 2021. During the call, the Applicant requested that the Commission email her another copy of the waiver form. Correspondence issued to the Applicant that day attaching the waiver form and advising that the application may be dismissed in the absence of any communication from the Applicant by 19 February 2021. The Applicant confirmed receipt of the form by telephone.

[9] On 19 February 2021, the Commission telephoned the Applicant. The call was unanswered, and a voicemail message was left in respect of the incomplete application.

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

Legislative framework

[11] 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)

[12] 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

[13] 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.

[14] 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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