Kirrily O'Neil v The Trustee for SDG Unit Trust T/A SDG Studfield Dental Group

[2019] FWC 3698

[2019] FWC 3698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kirrily O’Neil
v
The Trustee for SDG Unit Trust T/A SDG Studfield Dental Group
(C2019/2674)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Ms Kirrily O’Neil (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 24 April 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Trustee for SDG Unit Trust T/A SDG Studfield Dental Group (the Respondent) in contravention of the general protections provisions in the Act. Ms O’Neil’s application was incomplete in that no payment or application for waiver of the lodgement fee was completed.

[2] On 26 April 2019 the Commission contacted Ms O’Neil by telephone regarding her application. The Applicant advised that as she was not working she could not afford to make the payment. An application for waiver of the lodgement fee was emailed to the Applicant later that day. The email stated among other things that if payment of the filing fee or the waiver application was not received within 14 days her application may be dismissed.

[3] In the absence of any response, on 15 May 2019 a voicemail message was left requesting that the Applicant contact the Commission in relation to her application. An email was also sent to the Applicant foreshadowing again that her application may be dismissed unless she completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact the Applicant the Commission has not received a completed waiver form or lodgement fee payment.

[4] 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.”

[5] 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.”

[6] Ms O’Neil 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 s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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