Melissa Mason v Ohsa

[2019] FWC 5299

[2019] FWC 5299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Melissa Mason
v
OHSA
(C2019/3988)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Ms Melissa Mason (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that she had been dismissed by OHSA (Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (Commission) on 27 June 2019 but was incomplete, as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[2] On 28 June 2019, the Commission telephoned the Applicant and a voicemail message was left to advise that the application was incomplete. On the same day, the Commission sent an email to the Applicant notifying her that the application may be dismissed unless the lodgement fee was paid, or a completed waiver application was received. The letter also stated that in the absence of any advice from the Applicant concerning these matters within 14 days, the application may be dismissed.

[3] The Applicant replied via email on 28 June 2019 querying why her application had been allocated to the Hobart Registry. An email was sent in reply on the same day, advising the Applicant that the Commission is a national organisation and an application may be processed in a state other than where the Applicant resides. Later that day, a telephone call to the Applicant was made and a voicemail was left requesting that the Applicant telephone the Commission regarding payment of the lodgement fee.

[4] On 19 July 2019 and 23 July 2019, the Commission telephoned the Applicant and voicemails were left regarding the application, which remained incomplete. A letter was sent to the Applicant by email and registered post on 23 July 2019 in substantially the same terms as the 28 June 2019 email. The Applicant was advised to pay the lodgement fee or complete the waiver application within 7 days of the letter, or the application may be dismissed.

[5] On 30 July 2019, the Commission telephoned the Applicant. A voicemail message was left advising that the application remained incomplete despite repeated attempts to contact the Applicant regarding payment of the lodgement fee or completion of the waiver application.

[6] To date, the Commission has not received payment of the lodgement fee or a completed waiver application from the Applicant.

[7] 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.”

[8] 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.”

[9] The Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a). An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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