Rupinder Kaur v Desi Hatti Pty Ltd Atf Desi Hatti Trust

[2023] FWC 1918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Rupinder Kaur
v

Desi Hatti Pty Ltd Atf Desi Hatti Trust

(C2023/2219)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 AUGUST 2023

Application to deal with contraventions involving dismissal – application dismissed.

On 18 April 2023, Ms Rupinder Kaur (the Applicant) made an application under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

The application was incomplete insofar as Question 3.3 on the Form F8 was not filled out. Moreover, the application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The Applicant has not responded to correspondence from the Commission alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.

Context

On 24 April 2023, the Commission sent an application acknowledgement letter to the Applicant.

Also on 24 April 2023, the Commission attempted to call the Applicant at her nominated phone number. The Applicant did not answer. A detailed voice message was left at her number requesting that the Applicant contact the Commission with regards to completing Question 3.3 of her Form F8 as well as paying the required lodgement fee. The voice message also quoted the Applicant’s matter number and provided a callback number for the Commission.

Moreover, an email was sent to the Applicant’s nominated email address on 24 April 2023 requesting an answer to Question 3.3 and payment of the required lodgement fee or alternatively a waiver application within 14 days (or by 8 May 2023) in order for the matter to progress.

On 30 May 2023, the Commission made a final attempt to call the Applicant at her nominated phone number. The Applicant did not answer. A detailed voice message was left at her number requesting the supply of the outstanding information by COB on 1 June 2023 or the matter would be referred to a Commission member and likely be dismissed.

To date, the Applicant has not paid the required lodgement fee or filed a completed waiver application.

Legislative framework

In relation to an application made pursuant to s.365 of the Act, s.367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

Section 587 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.

…

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

Consideration and conclusion

The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.
The application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Rupinder Kaur, lodged an application under section 365 of the Fair Work Act 2009 (Cth) against Desi Hatti Pty Ltd Atf Desi Hatti Trust, alleging that she was dismissed in contravention of the general protection provisions of the Act. Desi Hatti Pty Ltd Atf Desi Hatti Trust sought dismissal of the application on the basis that it was incomplete and not accompanied by the required fee or a waiver application. The applicant did not respond to the Commission's attempts to address the deficiencies in her application.
The legal issues before the Commission were whether the applicant's application complied with section 367 of the Act and whether the application could be dismissed pursuant to section 587 of the Act. Section 367 of the Act requires that an application under section 365 be accompanied by the prescribed fee or a completed waiver application. Section 587 allows the Commission to dismiss an application if it is not made in accordance with the Act. The Commission had attempted to notify the applicant of the deficiencies in her application and to give her an opportunity to rectify them, but the applicant had taken no action to address the deficiencies.
The Commission found that the applicant's application did not comply with section 367 of the Act as it was not accompanied by the required fee or a waiver application. The Commission had notified the applicant of the deficiencies in her application on multiple occasions and had given her an opportunity to rectify them, but the applicant had taken no action to do so. The Commission therefore decided to exercise its discretion to dismiss the application pursuant to section 587(1)(a) of the Act.
The application is dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established