Kayla Harland v Angela Denise Ellis

[2023] FWC 214

[2023] FWC 214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Kayla Harland
v

Angela Denise Ellis

(C2022/7735)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Kayla Harland (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has this been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed on 22 November 2022.

1. On 23 November 2022, the Commission emailed correspondence to the applicant advising that their application required payment of the filing fee or a completed waiver application. Instructions explaining how to pay or make a waiver application were provided. The email put the applicant on notice that the application may be dismissed in the absence of compliance.

1. An SMS was sent to the applicant on 24 November 2022 notifying the applicant to comply with the Commission’s 23 November 2022 email.

1. On 9 December 2022, the Commission telephoned the applicant. A voicemail was left requesting that the applicant contact the Commission urgently regarding the filing fee, or the application may be dismissed.

1. A further telephone call was made to the applicant on 16 December 2022. A voicemail was left advising the applicant that if payment of the filing fee was not made by 19 December 2022, the application may be dismissed.

1. In the absence of a response, on 22 December 2022 the Commission emailed the applicant with instructions explaining how to pay the filing fee or make a waiver application. The email put the applicant on notice that the application may be dismissed if payment was not made.

1. Attempts to contact the applicant by telephone were made on 29 December 2022.  Each call was not answered, and a voicemail message was left advising that the application may be dismissed as the filing fee remained outstanding.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

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.

Consideration and conclusion

1. The applicant has neither paid the filing fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR749946>