Renaee Lawrence v Swan Districts Gymnastics

[2024] FWC 1471

[2024] FWC 1471

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Renaee Lawrence
v

Swan Districts Gymnastics

(U2024/4547)

DEPUTY PRESIDENT EASTON SYDNEY, 6 JUNE 2024

Application for an unfair dismissal remedy

1. On 26 April 2024 Mrs Renaee Lawrence made an application by telephone to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth). During the telephone call the applicant indicated that she would like to apply for a waiver of the application fee.

1. The Commission prepared a written application for Ms Lawrence and sent it to her by email on the same day. The applicant was advised that she must file a completed application within 14 days and was given information about how to do so. The applicant was also given information on how to apply for a waiver of the application fee.

1. Mrs Lawrence was advised that a failure to return a completed application and provide payment or a completed waiver form may result in her application being dismissed.

1. On 8 May 2024 the Commission attempted to contact Mrs Lawrence on her nominated telephone number however Mrs Lawrence did not answer the call. A voicemail message was left advising that the Commission had not received her completed Form F2 application nor fee waiver form and that her 14 days were almost up. The applicant was asked to send these documents urgently if she wanted her matter to proceed and was warned that her matter could be dismissed.

1. Rule 69 of the Fair Work Commission Rules 2024 applies:

69 Telephone applications—application under section 365 of the Act, unfair dismissal application or unlawful termination FWC application

(1)This rule applies to a person wanting to make:

(a)an application under section 365 of the Act (for the FWC to deal with a dismissal dispute); or

(b)an unfair dismissal application; or

(c)an unlawful termination FWC application.

(2)The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: In 2024, the telephone numbers approved by the General Manager for making a telephone application were available on the FWC’s website ( align="left">(3)The FWC must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4)The person must, within 14 days after the day on which the FWC gives the written application to the person:

(a)complete and sign the written application; and

(b)lodge it with the FWC; and

(c)either pay the application fee or apply for a waiver of that fee.

Note: For the application fee, see regulations 3.02, 3.07 and 6.05 of the Fair Work Regulations 2009.

(5)If the person applies for a waiver, and the FWC refuses that application, the person must pay the application fee within 7 days after the day on which the person was notified of the refusal by the FWC.

(6)The person is taken to have made the application on the day on which the person telephones the FWC to make the application in accordance with subrule (2) if:

(a)the person complies with subrule (4) within the required period; and

(b) if subrule (5) applies—complies with subrule (5) within the required period.

1. Section 395 of the Act, which deals with application fees, states as follows:

395 Application fees

(1) An application to the FWC under this Division 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 this Division; 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.

1. Having regard to the above, Mrs Lawrence has failed to file a completed application.

1. 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.

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. Mrs Lawerence’s application was not made in accordance with the Act (per s.587(1)(a)) because it was incomplete and the application fee has not been paid or waived (per s.395). Section 587 confers a discretion on the Commission to dismiss Mrs Lawerence’s application.

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mrs Lawerence’s application.

1. Mrs Lawerence has been on notice of the likely consequences for her application if she did not respond to the Commission’s inquiry and it is quite possible that she has abandoned her application.

1. I have separately made an order dismissing Mrs Lawerence’s application (PR775725).

DEPUTY PRESIDENT

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