Justine Ryan v Lifestyle Solutions

[2017] FWC 6643

[2017] FWC 6643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Justine Ryan

v

Lifestyle Solutions

(C2017/5957)

deputy president kovacic CANBERRA, 12 DECEMBER 2017

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

1. Ms Justine Ryan (the Applicant) made an application over the telephone with the Fair Work Commission (the Commission) on 30 October 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Lifestyle Solutions (the Respondent) in contravention of the general protections provisions in the Act. Ms Ryan’s application was incomplete in that a signed and completed application was not returned to the Commission and no payment or application for waiver of the lodgment fee was completed.

1. Rule 9 of the Fair Work Commission Rules 2013 provides that:

“9       Telephone applications

…

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.”

1. On 31 October 2017 the Commission emailed Ms Ryan a copy of her telephone application. The correspondence requested she return a completed and signed application within 14 days along with payment or an application to have the lodgement fee waived or the application may be dismissed. On 3 November 2017, Ms Ryan responded to the email and advised that she will send the completed documents that afternoon.

1. On 14 November 2017 the Commission contacted Ms Ryan by telephone regarding her telephone application. In the telephone call she advised that she was unsure how to answer particular questions in the application and would submit it following an appointment to obtain legal advice on 16 November 2017.

1. On 21 November 2017, the Commission contacted Ms Ryan by telephone regarding her telephone application, Ms Ryan advised that she had some difficulties in sending the completed application, however would do so on the following day.

1. On 27 November 2017, the Commission again contacted Ms Ryan by telephone regarding her telephone application, she advised that she was presently moving house and would attend to submitting the completed application soon.

1. On 30 November 2017 the Commission attempted to contact Ms Ryan via telephone. Ms Ryan did not answer the call. A voice message was left and an email subsequently sent asking Ms Ryan to return the completed application along with payment or an application to have the lodgement fee waived within 7 days or the application may be dismissed.

1. Despite these repeated attempts to contact Ms Ryan the Commission has received no completed application and no waiver form or payment of the lodgment fee.

1. 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.”

1. 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.”

1. Ms Ryan 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 ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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