[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

(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 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.

Printed by authority of the Commonwealth Government Printer

Melinda Bacon has applied to the Federal Circuit and Family Court of Australia to deal with contraventions involving dismissal. The application was found to be invalid, and as a result, it was dismissed. The applicant, Ms Bacon, is seeking a remedy in relation to an unfair dismissal claim against her former employer, Boehringer Ingelheim Pty Limited. The primary issue for the court to determine was whether the application was validly made and properly before the court. The court found that the application was not valid because it did not comply with the necessary procedural requirements for bringing such an application.

The court considered the statutory provisions and relevant case law to assess the validity of the application. It was determined that the application did not adhere to the prescribed procedures outlined in the Fair Work Act 2009. Specifically, the application did not contain all the necessary information and documentation required under the Act, leading to its invalidity. The court emphasised the importance of strict compliance with statutory requirements when making applications to the Fair Work Commission, as any failure to do so could result in the application being dismissed. Consequently, the court dismissed the application as it did not meet the necessary procedural criteria.

Given the dismissal of the application, the court did not proceed to consider the merits of the unfair dismissal claim. The final order of the court was that the application was dismissed due to its invalidity, and no further action could be taken in relation to the application. This decision highlights the importance of ensuring that all procedural requirements are strictly followed when making applications to the Fair Work Commission, as any non-compliance can result in the application being dismissed without consideration of the underlying merits.

Melinda Bacon v Boehringer Ingelheim Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established