Pendelich v Lyrebird Villages for the Aged Inc

[2016] FWC 2889

[2016] FWC 2889

DECISION

Fair Work Act 2009
s.365—General protections
Anna Pendelich
v
Lyrebird Villages for the Aged Inc.
(C2016/2808)
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 10 MAY 2016

Application to deal with contraventions involving dismissal – invalid application –

application dismissed.

[1]        Ms Anna Pendelich (the Applicant) made an application which was received by the

Fair Work Commission (the Commission) on 1 March 2016 under s.365 of the Fair Work Act

2009 (the Act) alleging that she had been dismissed by Lyrebird Villages for the Aged Inc.

(the Respondent) in contravention of the general protections provisions in the Act.

Ms Pendelich’s application was incomplete in that parts of the application were missing, it

was not accompanied by payment of the required application fee, or by a request to have the

application fee waived.

[2]        On 2 March 2016, the Commission attempted to contact Ms Pendelich via email,

however the email bounced back. Subsequently a letter was posted asking her to provide the

Commission with a completed F8 application and a completed waiver form or the application

fee within 14 days or the application may be dismissed.

[3]        The Commission subsequently attempted to contact Ms Pendelich on a number of

occasions, i.e. 8 and 18 March 2016 by telephone and letter regarding her application and

incomplete payment. On each occasion it was foreshadowed that Ms Pendelich’s application

may be dismissed unless she completed the application and the waiver form or paid the

lodgement fee.

[4]        On 4 April 2016 Ms Pendelich contacted the Commission to advise that a completed

application would be faxed that day. No such application has been received. The Commission

again attempted to contact Ms Pendelich on 11 and 27 April 2016 by telephone and letter.

Despite these repeated attempts to contact Ms Pendelich the Commission has received no

application form or completed waiver form or payment of the application fee
[2016] FWC 2889

[5]        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.

Note: For another power of the FWC to dismiss an application for a remedy for

unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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:

(c)	on its own initiative; or
(d)	on application.”

[6] 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.”

[7]        Ms Pendelich 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 ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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