Nicola Tackney v J Chetcuti Holdings Pty Ltd

[2019] FWC 240

[2019] FWC 240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nicola Tackney
v
J Chetcuti Holdings Pty Ltd
(C2018/6829)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 MARCH 2019

Application to deal with contraventions involving dismissal - application dismissed.

[1] Ms Nicola Tackney (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 3 December 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by J Chetcuti Holdings Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Tackney’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 4 December 2018 the Commission phoned the Applicant’s representative for payment. This was followed up with a letter which was emailed to the Applicant’s representative notifying her that the payment had not been paid and that she could apply for the application fee to be waived.

[3] On 14 December the Commission phoned the Applicant and left a voicemail message requesting payment of the lodgement fee or a completed waiver application before the application could proceed.

[4] The Commission contacted with the Applicant on 21 December 2018 when she advised that she had already sent a completed waiver form. As this form had not been received by the Commission the Applicant was requested to resend the form to the Commission by 24 December 2018.

[5] On the 2 January 2019 the Commission left another voice message asking the Applicant to contact the Commission urgently about her payment or waiver application. This was followed by an email stating that if she wished to proceed with the application she would need to make payment or submit a completed waiver form for assessment by 9 January 2019 and in the absence of payment or a completed waiver form, this matter will be allocated to a Member and may be dismissed.

[6] The Commission left a voicemail for the Applicant on 8 January 2019 asking her to contact the Commission by close of business 9 January 2019 or the matter would be allocated to a Member to consider whether her application should be dismissed. On 9 January 2019 the Applicant the Commission and advised, among other things, that she had posted a waiver to the Commission Queensland Registry around 3.00p.m. on 8 January 2019 and that she would also email pictures of the waiver shortly. Nothing was received from the Applicant.

[7] A final attempt to contact the Applicant was made on 14 January 2019 where a voicemail message was left advising that the Commission had not received the waiver application. This was followed up with an email to the Applicant stating:

“During a phone call with the Fair Work Commission on Wednesday 9th January you advised that a completed waiver had been sent via post, and that you would also email a copy of the waiver. The Commission has not yet received a completed F80 waiver form either by post or email.

Please forward a completed waiver form as soon as possible. I have attached a blank form if required.

The matter will be allocated to a Member tomorrow at 3:00 pm and may be dismissed if the Commission has not received the waiver.”

[8] No response to the email has been received from the Applicant.

[9] 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.”

[10] 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.”

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

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