Kim Atkinson v Napoleon Perdis Cosmetics Company

[2023] FWC 770

[2023] FWC 770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Kim Atkinson
v

Napoleon Perdis Cosmetics Company

(C2023/1484)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 MARCH 2023

Application to deal with a dispute – application dismissed.

1. On 20 March 2023, Ms Kim Atkinson (applicant) made an application under s.739 of the Fair Work Act 2009 to deal with a dispute in accordance with a dispute settlement procedure (the Act).

1. Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind.

1. Rule 8 of the Fair Work Commission Rules 2013 (FWC Rules) provides, inter alia, that if the President approves a form for a particular purpose, then subject to the FWC Rules, the approved form must be used for that purpose.

1. The approved form for an application under s.739 is the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Form F10).

1. Rule 36(3) of the FWC Rules provides that such an application must be accompanied by the term referred to in s.738 of the Act under which the Commission is required or allowed to deal with the dispute.

1. The application was made with a Form F10 but it was incomplete. For example, the Form F10 did not detail the industrial instrument or other written agreement covering the employment relationship, or the clause within the industrial instrument or other written agreement containing the dispute resolution procedure relevant to the application, or the clause within the industrial instrument the dispute was related to. It also did not comply with Rule 36(3) of the FWC Rules.

Context

1. On 20 March 2023, email correspondence was sent to the applicant by the Commission informing her that the F10 lodged by her had missing and incomplete information. The letter stated that the applicant had until 24 March 2023 to provide the requested information failing which the application may be dismissed.

1. An SMS notification was also sent to the applicant’s nominated telephone number on 20 March 2023. The SMS advised the applicant to take action in compliance with the email from the Commission regarding her incomplete application.

1. An attempt to contact the applicant on her nominated telephone number was also made by the Commission on 20 March 2023. The call was not answered and there was no Voicemail functionality available on the number provided.

1. On 23 March 2023, further email correspondence was sent to the applicant by the Commission reminding her that her application still contained missing and incomplete information. The correspondence further provided as follows:

“If we don’t receive your completed application by Tuesday 28 March 2023, your case is very likely to be dismissed.”

1. Also on 23 March 2023, an SMS notification was sent to the applicant. The notification advised the applicant to contact the Commission by phone, that the application remained incomplete and that it may be dismissed.

1. To date, the applicant has not responded to the Commission’s correspondence nor made any contact with the Commission.

Legislative framework

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.

1. As outlined above, the application has not been made in accordance with the FWC Rules. Sections 587(1)(a), (b) and (c) do not limit the Commission’s power to dismiss matters for other reasons and s.587(3) of the Act provides that the Commission may dismiss an application on its own initiative. It may be noted, for example, that the Full Bench of the Commission in Sayer v Melsteel Pty Ltd[1] held that s.587(1) provides for the dismissal of a matter without examining the merits where the applicant has failed to prosecute their case.

1. The applicant has taken no action to respond to the attempts made by the Commission on multiple occasions to contact her. The Form F10 remains incomplete and there has been non-compliance with Rule 36(3). In these circumstances, I have concluded the applicant does not wish to pursue the application.

1. Section 587 of the Act vests in the Commission the discretion to dismiss an application on its own initiative. I am satisfied it is appropriate in the circumstances of this case to exercise my discretion and dismiss the applicant’s application. An Order[2] to this effect will be issued with this Decision.

DEPUTY PRESIDENT

[1] [2011] FWAFB 7498 at [19].

[2] PR760744

Printed by authority of the Commonwealth Government Printer

<PR760743>