Ms Monique Bowles v The Trustee for J & G Bartholomew Trust

[2021] FWC 605

[2021] FWC 605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 – General protections

Ms Monique Bowles
v
The Trustee for J & G Bartholomew Trust
(C2020/8979)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Ms Monique Bowles (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). She alleges that she was dismissed by The Trustee for J & G Bartholomew Trust in contravention of the general protection provisions of the 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 11 December 2020.

[4] On 14 December 2020, the Commission telephoned the Applicant to obtain payment of the lodgement fee. The call was unanswered and accordingly a voicemail message was left requesting the Applicant contact the Commission.

[5] That same day, a letter was emailed to the Applicant and her representative, Employee Dismissal Claims. The letter advised that the Applicant must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed.

[6] On 31 December 2020 the Commission telephoned the Applicant. During the telephone call, the Applicant was advised that to proceed with her application she must pay the lodgement fee or file a completed waiver application. The Applicant is said to have terminated the telephone call.

[7] On 4 January 2021 the Commission telephoned the Applicant. A voicemail message was left requesting that the Applicant contact the Commission or make payment of the lodgement fee or file a completed waiver application. Subsequently, a letter was emailed to the Applicant providing a further 14 days for the lodgement fee to be paid or the waiver application to be filed. The letter stated that in the absence of any advice from the Applicant within this period, the application may be dismissed.
[8] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[9] 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.

(emphasis added)

[10] Section 587 of the Act provides that:

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

[11] Despite the Commission’s attempts to progress the application, the Applicant and her representative have failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[12] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(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.

DEPUTY PRESIDENT

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