Michelle Tonkin v Southern Adelaide Local Health Network

[2020] FWC 1474

[2020] FWC 1474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Michelle Tonkin
v
Southern Adelaide Local Health Network
(C2019/6560)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 20 MARCH 2020

Application to deal with an unlawful termination dispute.

[1] Ms Michelle Tonkin (Applicant) has made an unlawful termination application under s.773 of the Fair Work Act 2009 (Act).

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 25 October 2019. The Commission telephoned the Applicant that day, advising that it had identified two preliminary issues with the application. Each matter was set out in a letter emailed to the Applicant of even date. The letter advised that:

(a) some questions in the Form F9 application were not addressed. The Applicant was required to return a completed copy of the Form F9 to the Commission; and

(b) the application was incomplete as the lodgement fee was not paid and the application for waiver of the lodgement fee (waiver application) had not been completed correctly and was therefore deficient. The Applicant was advised that to proceed, she must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

[4] On 29 October 2019, the Commission telephoned the Applicant. A voicemail message was left reiterating the matters set out in the 25 October 2019 letter. The Applicant was requested to contact the Commission.

[5] On 31 October 2019, the Applicant telephoned the Commission. The Applicant was advised that on the information provided by her during the call, she may be entitled to make a general protections application in relation to the matter. In such a case, s.723 of the Act provides that a person must not make an unlawful termination application if he or she is entitled to make a general protections court application in relation to the conduct.

[6] In the absence of any communication from the Applicant, the Commission telephoned her on four separate occasions during the period between 7 November 2019 to 2 December 2019, seeking she provide completed copies of the Form F9 and waiver application. A voicemail message was left on each occasion.

[7] In the absence of any contact from the Applicant, a further telephone call was made to the Applicant on 13 January 2020. A voicemail message was left reiterating the request set out at [6] above.

[8] On 24 January 2020, an email was sent to the Applicant advising that the application would be dismissed if the lodgement fee was not paid or a completed waiver application was not received by 29 January 2020.

[9] To date, the Commission has not received payment of the lodgement fee or a completed waiver application. The Applicant has not responded to any communication from the Commission to discuss the application.

Legislative framework

[10] In relation to an application made pursuant to s.773 of the Act, s.775 provides:

775 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 773; 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.”

(emphasis added)

[11] Section 587 of the Act further 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.”

(emphasis added)

Consideration and conclusion

[12] The Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete. The Applicant has not responded to numerous attempts by the Commission to contact her regarding the application.

[13] In these circumstances, I am satisfied that the Applicant has failed to comply with s.775(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s.587(1)(a) of the Act.

[14] An order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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