Maren Nickel v Life Without Barriers LWB

[2023] FWC 827

[2023] FWC 827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Maren Nickel
v

Life Without Barriers LWB

(C2023/1524)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 APRIL 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 16 March 2023, Ms Maren Nickel (Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Ms Nickel alleges that she was 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). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. At 9:20am, on 22 March 2023, the Commission emailed correspondence to Ms Nickel’s nominated email address advising her that the Form F80 she submitted was unable to be read and it was requested that Ms Nickel submit a clear version.

1. On the same day, on 22 March 2023, the Commission emailed correspondence to Ms Nickel’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.”

1. At 5:29pm, on 22 March 2023, Ms Nickle emailed the Commission in response to the request for a clear version of her Form F80 and informed the Commission that she would try to send a clear version as soon as possible.

1. On 24 March 2023 an attempt was made to contact Ms Nickel on her nominated telephone number. The call was not answered, and a message was left informing her that her Form F80 application for waiver was incomplete, and that all pages would need to be submitted for it to be considered. The voicemail was followed up by email correspondence, sent at 2:44pm to Ms Nickel’s nominated email address, reiterating this information.

1. At 3:18pm, on 24 March 2023, Ms Nickle’s emailed the Commission requesting a copy of the Form F80 she was required to file so that she could complete and return it as soon as possible. A blank Form F80 was sent to Ms Nickel at 3:50PM AEDT, to her nominated email address.

1. At 8:33am, on 27 March 2023, the Commission emailed correspondence to Ms Nickel’s nominated email address reminding her that her application required payment of the filing fee or a completed Form F80, if she wished to proceed with the application. The correspondence instructed Ms Nickle on how to pay the application fee or complete the 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.”.

1. At 12:11pm, on 27 March 2023, Ms Nickel contacted the Commission by telephone. During this call she advised that she was experiencing difficulty in submitting the Form F80 but that she would try to send a completed version later that day. During the telephone call Ms Nickle also brought up complaints she had against a Member of the Fair Work Commission. Following the phone call with Ms Nickle the Commission emailed Ms Nickel information about how she could apply for free legal advice with the Workplace Advice Service. In a separate email shortly after, Ms Nickle was also provided with a link to the Commission’s complaints page. 

1. A final attempt to contact Ms Nickel, on her nominated telephone number, was made by the Commission at 1:12pm, on 28 March 2023. Ms Nickel advised that she had received previous correspondence and would send the completed Form F80 that day. It was made clear to Ms Nickle that if the completed Form F80 or payment of the application fee was not received by the end of the next day her matter would be at risk of being dismissed.

1. At 1:52pm, on 28 March 2023, Ms Nickle replied with a thank you email to the email from the Commission which had provided her with a link to the Commission’s complaints page.

1. To date Ms Nickle has not paid the application fee or filed a completed Form F80.

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.

Consideration and conclusion

1. In considering all the circumstances, I am satisfied that the relevant application form 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. The many attempts by the Commission to contact Ms Nickle, the numerous reminders and the multiple requests that have not been complied with leave me satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

1. 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] PR760899.

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