Melanie Lugg v Australian Foundation for Disability

[2021] FWC 6046

[2021] FWC 6046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Melanie Lugg
v
Australian Foundation for Disability
(C2021/5346)

DEPUTY PRESIDENT COLMAN MELBOURNE, 1 OCTOBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Ms Melanie Lugg (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by the Australian Foundation for Disability (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting her to the deficiency, nor has she rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 3 September 2021. On 6 September 2021, the Commission sent to the applicant a letter noting that parts of the application were incomplete and that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived if the fee would cause serious hardship. On 23 September 2021, the Commission wrote to the applicant a second time, noting that the lodgement fee remained unpaid and no amended application had been received. The letter stated that unless the application was completed and the fee was paid, or a completed waiver application was received by 30 September 2021, the matter may be dismissed.

[3] The applicant has not lodged an amended application, nor has she paid the lodgement fee or submitted a completed waiver application. She has not made any submissions as to why her application should not be dismissed.

[4] 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.”

[5] Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations’. At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. This deficiency engages s 587(1)(a): the application was not made in accordance with the Act.

[6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was not accompanied by the required fee and no action was taken to address the deficiency within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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