Scarlett Perrett v Essential Site Worx Pty Ltd

[2019] FWC 5027

[2019] FWC 5027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Scarlett Perrett
v
Essential Site Worx Pty Ltd
(C2019/836)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 2 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Ms Scarlett Perrett (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Essential Site Worx Pty Ltd (the Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (the Commission) on 7 February 2019 but was incomplete as no payment of the lodgement fee was made and no application for waiver of the lodgement fee (waiver application) was completed.

[2] On 7 February 2019, the Commission contacted the Applicant via telephone regarding her application. During the telephone call, the Applicant asked whether payment could be made online and was advised that it could not. The Applicant then disconnected the call. The Commission sent email correspondence to the Applicant and the Applicant’s representative, Ms Tamina Sarwari of Unfair Dismissals Direct (Applicant’s representative) on the same day, requesting payment of the lodgement fee or a completed waiver application within 14 days, or the application may be dismissed.

[3] On 22 February 2019, the Commission contacted the Applicant by telephone and advised the payment of the lodgement fee or a completed waiver application was required for the application to proceed. The Applicant was advised that the payment or waiver application needed to be provided by Monday, 25 February 2019 or the matter may be dismissed.

[4] On 26 February 2019, the Commission attempted to contact the Applicant by telephone. A voicemail message was left for the Applicant, requesting payment of the lodgement fee or a completed waiver application, or the application may be dismissed.

[5] On 27 February 2019, the Commission contacted the Applicant’s representative by telephone. The Commission was advised by the Applicant’s representative that payment of the lodgement fee would be made shortly. On the same day, the Commission contacted the Applicant by telephone to advise her that the Respondent had informed the Commission that the Respondent company was entering into administration and that payment of the lodgement fee or a completed waiver application was required to proceed with the application. The Applicant advised the Commission that she wished to pursue the application and payment of the lodgement fee would be made that evening. No payment was subsequently made.

[6] On 28 February 2019, the Commission sent an email and correspondence by post to the Applicant and the Applicant’s representative to advise the application remained incomplete.

[7] On 7 March 2019, the Commission contacted the Applicant’s representative by telephone regarding the application. The Applicant’s representative again advised the Commission that the lodgement fee would be paid.

[8] On 20 March 2019, the Applicant’s representative was advised that as the lodgement fee had not been paid, the matter would be allocated to a Member to consider whether the application should be dismissed.

[9] To date, the Commission has not received payment of the lodgement fee or a completed waiver application.

[10] 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.”

[11] 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.”

[12] The Applicant has failed to comply with s.367(1) of the Act. Accordingly, the 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.

DEPUTY PRESIDENT

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