Melinda Bacon v Boehringer Ingelheim Pty Limited

[2017] FWC 6635

[2017] FWC 6635

The attached document replaces the document previously issued with the above code on 12 December 2017.

Paragraph numbering is corrected.

Michelle Robinson

Associate to Deputy President Kovacic

Dated 12 December 2017

[2017] FWC 6635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Melinda Bacon
v
Boehringer Ingelheim Pty Limited
(C2017/2865)

DEPUTY PRESIDENT KOVACIC CANBERRA, 12 DECEMBER 2017

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

[1] Ms Melinda Bacon (the Applicant) made an application which was received by the Fair Work Commission (the Commission) 29 May 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Boehringer Ingelheim Pty Limited (the Respondent) in contravention of the general protections provisions in the Act. Ms Bacon’s application was incomplete in that sections of the application were unanswered, the application was unsigned and no payment or application for waiver of the lodgment fee was completed.

[2] On 30 May 2017 the Commission contacted Ms Bacon via email to advise that her application was unpaid and incomplete in that sections of the application were unanswered. The email asked her to provide the Commission with a completed application and a completed waiver form or lodgment fee payment within 14 days or the application may be dismissed.

[3] On 9 June 2017, Ms Bacon contacted the Commission’s general enquiries line to enquire on the merits of her application, the Commission gave Ms Bacon a telephone number so that she could seek legal advice. In the telephone call Ms Bacon stated that she believed she did not have a case and foreshadowed that she would discontinue her application.

[4] The Commission subsequently attempted to contact Ms Bacon on a number of occasions, i.e. 22 June, 19 July and 30 November 2017, by telephone and email regarding her application. On each occasion it was foreshadowed that Ms Bacon’s application may be dismissed unless she completed the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Ms Bacon the Commission has received no completed waiver form 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

(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.”

[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

(c) the circumstances in which all or part of the fee may be waived or

refunded.”

[7] Ms Bacon 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.

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