Lauren Hodson v Western Health
[2023] FWC 2365
•14 SEPTEMBER 2023
| [2023] FWC 2365 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Lauren Hodson
v
Western Health
(C2023/4781)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 14 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal
On 8 August 2023, Ms Lauren Hodson (Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Ms Godwin 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 application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.
On 13 August 2023, the Commission emailed correspondence to Ms Hodson’s nominated email address advising her that her application required payment of the application fee or a completed Form F80, if she wished to proceed with the application. The email further stated as follows:
“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.
…
If you don’t make payment within 7 days your application may be dismissed.”
On 14 August 2023, the Commission received an email attaching a Form F54 – Notice that lawyer or paid agent has ceased to act for Ms Hodson. Ms Hodson’s nominated email address was copied into this email.
On 14 August 2023, an SMS notification was also sent to Ms Hodson’s nominated telephone number. The SMS advised Ms Hodson to take action in compliance with the email from the Commission regarding payment of the application fee.
On 16 August 2023, the Commission emailed correspondence to Ms Hodson’s nominated email address, reminding her that her application required payment of the application fee, or a completed Form F80, if she wished to proceed with the application. The correspondence instructed Ms Hodson on how to pay the application fee or complete a Form F80, and further stated as follows:
“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.
On 25 August 2023 a final attempt was made by the Commission to contact Ms Hodson on her nominated telephone number. The call was not answered, and a voicemail message was left requesting that Ms Hodosn contact the Commission by close of business on 28 August 2023, or her matter would be referred to a Member of the Commission and at risk of dismissal.
To date, Ms Hodson has neither paid the application fee nor filed a completed Form F80.
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 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
In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.
Despite the attempts by the Commission to contact her, the reminders and the multiple requests, Ms Hodson has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.
The application is dismissed. An Order[2] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].
[2] PR766224.
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