Ms Sharni Evans v Perks Hospitality Management

[2019] FWC 8080

[2019] FWC 8080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Sharni Evans
v
PERKS Hospitality Management
(C2019/6514)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 13 DECEMBER 2019

Application to deal with contraventions involving dismissal.

[1] Ms Sharni Evans (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act). She alleges that she was dismissed by PERKS Hospitality Management (Respondent) in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The Applicant has failed to pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application). The reasons for this decision follow.

Context

[3] The application was received by the Commission on 23 October 2019. That day:

(a) the Commission telephoned the Applicant seeking payment of the lodgement fee or a waiver application. The Applicant advised that she would attend the Commission to pay the lodgement fee by cash. To date she has not done so; and

(b) a letter was emailed to the Applicant notifying her that the application was incomplete. The Applicant was provided 14 days to pay the lodgment fee or file a waiver application.

[4] In the absence of compliance by the Applicant, the Commission telephoned the Applicant on 6 and 14 November 2019. On each occasion, a voicemail message was left requesting a return call to discuss the incomplete application.

[5] On 14 November 2019, a letter was emailed to the Applicant advising that the application remained incomplete and it would be dismissed if the Applicant did not contact the Commission within seven days.

[6] In the absence of any contact from the Applicant, a further telephone call was made on:

(a) 21 November 2019. A voicemail message was left; and

(b) 26 November 2019. This call did not connect, and no voicemail could be left.

[7] To date, the Applicant has not paid the lodgement fee or filed a waiver application.

Legislative framework

[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.”

(emphasis added)

[9] 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

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

[11] 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.

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

DEPUTY PRESIDENT

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