Kerry Rockstroh v Ifys Limited

[2023] FWC 1798

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kerry Rockstroh
v

IFYS Limited

(C2023/3717)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JULY 2023

Application to deal with contraventions involving dismissal – application dismissed.

On 23 June 2023, Kerry Rockstroh (applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

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 her to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

On 28 June 2023, the Commission contacted Ms Rockstroh on the nominated mobile phone number and a recorded message advised that the number is not in service.

On 28 June 2023, the Commission contacted the applicant’s nominated representative, Employee Dismissals on their nominated phone number. The call was not answered, and a voicemail was left advising to contact the Commission.

On 30 June 2023, the Commission made multiple unsuccessful attempts to contact Employee Dismissals on their nominated phone number.

On 30 June 2023, the Commission emailed correspondence to Ms Rockstroh’s nominated email address and also Employee Dismissals’ nominated email address reminding that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The correspondence instructed the applicant on how to pay the application fee or make a waiver application and further stated as follows:

“You have until Friday 14 July 2023 to do this or your application may be dismissed.”.

Final attempts to contact Ms Rockstroh’s representative on their nominated telephone number were made by the Commission on 6 July 2023 and 14 July 2023 to obtain payment or a completed waiver form. The calls were not answered, and a voicemail message was left on both occasions advising that payment of the required fee was still outstanding.

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

Legislative framework

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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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

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

The applicant has taken no action to address the deficiency despite being notified of it 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.

The application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kerry Rockstroh applied to the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009, alleging that she had been dismissed in contravention of the general protection provisions in Part 3-1 of the Act. Ifys Limited was the respondent to the application. The applicant did not accompany the application with the fee prescribed by the Fair Work Regulations 2009, nor did she submit a completed application for a waiver of the fee. Despite being contacted by the FWC on multiple occasions to address the deficiency, the applicant did not respond or rectify the deficiency. The FWC was required to determine whether it had the discretion to dismiss the application for failure to pay the prescribed fee and for not seeking a waiver of the fee, and whether the application was otherwise frivolous or vexatious. The FWC found that the application was not accompanied by the required fee or a waiver application, and that the applicant had not responded to the FWC’s attempts to contact her. The FWC exercised its discretion to dismiss the application, pursuant to section 587(1)(a) of the Act.
The Fair Work Act 2009 requires that an application made under section 365 be accompanied by the fee prescribed by the Fair Work Regulations 2009, or a waiver of the fee. The applicant did not pay the fee or seek a waiver, and despite being contacted by the FWC on multiple occasions, the applicant did not address the deficiency. The FWC also found that the applicant had not responded to attempts by the FWC to contact her or her representative. The FWC was required to consider whether it had the discretion to dismiss the application for failure to pay the fee or seek a waiver, and whether the application was frivolous or vexatious. The FWC found that the application was not made in accordance with the Act, and that the applicant had taken no action to address the deficiency despite being notified of it by the FWC. Accordingly, the FWC exercised its discretion to dismiss the application, pursuant to section 587(1)(a) of the Act. The application was dismissed.
The FWC dismissed the application made by Kerry Rockstroh under section 365 of the Fair Work Act 2009. The FWC found that the application was not accompanied by the fee prescribed by the Fair Work Regulations 2009, nor was a waiver of the fee sought. The applicant had not responded to multiple attempts by the FWC to contact her and address the deficiency. The FWC found that the application was not made in accordance with the Act, and that the applicant had taken no action to address the deficiency despite being notified of it by the FWC. Accordingly, the FWC exercised its discretion to dismiss the application, pursuant to section 587(1)(a) of the Act. The application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established