DECISION

Fair Work Act 2009
s.365—General protections

Maribel Langley-van Keulen
v
Buildability Group
(C2017/6649)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 27 APRIL 2018

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Ms Maribel Langley-van Keulen (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 1 December 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Buildability Group (the Respondent) in contravention of the general protections provisions in the Act. Ms Langley-van Keulens’ application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 1, 4 and 5 December 2017 the Commission contacted Ms Langley-van Keulen via telephone regarding her application. Ms Langley-van Keulen did not answer the calls and subsequently voice messages were left. An email was also sent on 8 December 2017, asking her to provide the Commission with payment or a completed application for waiver of the lodgment fee within 14 days or her application may be dismissed.

[3] The Commission subsequently attempted to contact Ms Langley-van Keulen on a number of occasions i.e. 18 December 2017, 2, 3, 4 and 19 January 2018 regarding her incomplete application for fee waiver. On 24 January 2018, Ms Langley-van Keulen sent an email to the Commission advising that she no longer wished to complete her waiver form and instead elected to pay the application fee. The Commission then attempted to contact Ms Langley-van Keulen on 2, 8 February 2018 by telephone. Ms Langley-van Keulen did not answer the calls and voicemails were not able to be left.

[4] On 19 February 2018 the Commission contacted Ms Langley-van Keulen by telephone and email regarding her application and foreshadowed her application may be dismissed unless she completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Ms Langley-van Keulen the Commission has received no completed waiver form or lodgment fee payment.

[5] 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

(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.”

[6] 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

refunded.”

[7] Ms Langley-van Keulen 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 ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

Maribel Langley-van Keulen brought proceedings in the Fair Work Commission against Buildability Group, alleging contraventions of the Fair Work Act. The respondent sought to have the application dismissed on the basis that the applicant had failed to comply with procedural requirements set out in the Fair Work Regulations. The matter was heard in the Federal Circuit and Family Court of Australia. The primary legal issue before the court was whether the application was invalid due to the applicant's failure to comply with the procedural requirements for filing and serving the application. The court had to consider the statutory provisions and regulations governing the application process and determine if there were any exceptions or circumstances that would allow the court to accept the application despite the procedural non-compliance.

The court found that the applicant had indeed failed to comply with the procedural requirements for filing and serving the application, which rendered the application invalid. The court held that there were no exceptional circumstances that would warrant the court accepting the application despite the procedural non-compliance. The court noted that the procedural requirements were in place to ensure fairness and efficiency in the handling of proceedings and that strict adherence to these requirements was necessary to maintain the integrity of the legal process. The court dismissed the application, finding that it did not have the jurisdiction to proceed with the matter due to the invalid application.

The Federal Circuit and Family Court of Australia dismissed the application brought by Maribel Langley-van Keulen against Buildability Group. The court found that the application was invalid due to the applicant's failure to comply with the procedural requirements for filing and serving the application. The court held that there were no exceptional circumstances that would allow the court to accept the application despite the procedural non-compliance. The court dismissed the application, and no further orders were made.

Maribel Langley-van Keulen v Buildability Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established