Ms Victoria Tehan v Benetas Kangarooflat
[2023] FWC 464
•24 FEBRUARY 2023
| [2023] FWC 464 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ms Victoria Tehan
v
Benetas Kangarooflat
(C2023/727)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 24 FEBRUARY 2023 |
Application to deal with contraventions involving dismissal – Application dismissed pursuant to s.587 of the Fair Work Act 2009.
On 12 February 2023, Ms Victoria Tehan made an application under s.365 of the Fair Work Act 2009 (Cth) (Act) alleging that she was dismissed by Benetas Kangarooflat (the Respondent) in contravention of the general protection provisions in Part 3-1 of the Act.
Section 367 of the Act relevantly provides as follows:
“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.”
At the time Ms Tehan’s application was made, the Fair Work Regulations 2009 (Cth) (Regulations) prescribed a filing fee of $77.80. The Regulations also allow for an application to be made for the filing fee to be waived. The application was not accompanied by the fee prescribed by the Regulations or by a completed Form F80 - Waiver of application fee (Form F80).
On 14 February 2023, the Commission sent an email to Ms Tehan’s nominated email address attached to which was a letter advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The letter contained instructions explaining how to do so. The letter further stated as follows:
“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.
If you don’t make payment within 7 days your application may be dismissed.”
On 15 February 2023, Ms Tehan telephoned the Commission querying if her Form F80 had been received. Ms Tehan was advised that the Form F80 had not been received by the Commission and payment of the lodgement fee or provision of the Form F80 remained outstanding. Ms Tehan was also provided with information regarding the Commission’s Workplace Advice Services. Following the telephone call, an email was sent to Ms Tehan attaching a copy of a blank Form F80 for completion. On 16 February 2023, Ms Tehan responded to the email confirming receipt of the Form F80 and advising she will send a completed Form F80 to the Commission later that day.
As no Form F80 was received by Ms Tehan, further correspondence was sent to Ms Tehan’s nominated email address on 17 February 2023 reminding her that the application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The correspondence provided instructions on how to pay the filing fee or make a waiver application. The correspondence also put Ms Tehan on notice that her application may be dismissed if payment was not made:
“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”
On 21 February 2023, in the absence of compliance, the Commission telephoned Ms Tehan on her nominated telephone number in a final attempt to obtain payment or a completed waiver form. The call was not answered, and there was no facility allowing a voicemail to be left
To date, Ms Tehan has not paid the filing fee or filed a completed waiver application.
Section 587(1) of the Act provides as follows:
“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.
...
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Ms Tehan has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions.
Section 587 of the Act vests in the Commission the discretion to dismiss an application on its own initiative. I am satisfied it is appropriate in the circumstances of this case to exercise my discretion and dismiss Ms Tehan’s application under s.587(1)(a) on the basis that she has neither paid the filing fee nor sought a fee waiver, and as such, the application is not made in accordance with s.367 of the Act. An Order to this effect will be issued with this Decision.
DEPUTY PRESIDENT
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