Santa Yousif v G4S Custodial Services Pty Ltd

[2024] FWC 39

[2024] FWC 39

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Santa Yousif
v

G4S Custodial Services Pty Ltd

(C2023/7975)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2024

Application to deal with an unlawful termination dispute – national system employer – dismissal under s.587 at the Commission’s initiative.

1. On 19 December 2023 Ms Santa Yousif (the Applicant) made an application to deal with an unlawful termination dispute to the Fair Work Commission pursuant to s.773 of the Fair Work Act 2009 (FW Act).

1. Ms Yousif’s application was incomplete in that she had not paid the required application fee nor lodged a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 19 December 2023, the Commission attempted to contact Ms Yousif on her nominated telephone number, however Ms Yousif did not answer the call. A voicemail message was left notifying Ms Yousif that the Commission would be sending her an email regarding her matter and requesting that she contact the Commission. Later that day the Commission sent Ms Yousif an SMS notification on her nominated telephone number requesting that she contact the Commission. The Commission also emailed correspondence to Ms Yousif’s nominated email address advising her that she may not be eligible to make his application because G4S Custodial Services Pty Ltd (the Respondent) may be a national system employer and this would mean that she could make a general protections application. The correspondence included information on the different types of applications that deal with dismissal and further stated:

“If you can make a general protections application, then you can’t make an unlawful termination application.

There are strict time limits. You need to decide which application you want to make as soon as you can.”

1. On 29 December 2023, the Commission emailed correspondence to Ms Yousif’s nominated email address reminding her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. This correspondence also warned that if payment was not paid or a Form F80 submitted within 7 days, Ms Yousif’s application may be dismissed. On 3 January 2024, a final attempt to contact Ms Yousif on her nominated telephone number was made, a voicemail message was left requesting that Ms Yousif contact the Commission by the end of the day, or her matter may be dismissed. To date Ms Yousif has not contacted the Commission, nor paid the application fee or filed a Form F80.

1. Section 775 of the FW Act, which deals with application fees, provides as follows:

(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 773; 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. Pursuant to s.723 of the FW Act, a person entitled to make a general protections application must not make an unlawful termination application. Section 587(1) of the FW 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 prospect of success.

(2)  Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application

1. In the circumstances, I am satisfied that Ms Yousif lodged an unlawful termination application when she was entitled to make a general protections application and accordingly, the application has not been made in accordance with s.723 of the FW Act. Having regard to this, and the lack of a response and payment of the application fee, or filing of a Form F80 by Ms Yousif, I am persuaded that I should exercise my discretion and dismiss the application pursuant to s.587(1)(a) of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR770012.

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