Sharah Cohen v Ghanda Summary

[2023] FWC 760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sharah Cohen
v

Ghanda

(C2023/1001)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 MARCH 2023

Application to deal with contraventions involving dismissal

On 24 February 2023, Ms Sharah Cohen (applicant) made an application under s365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges a dismissal in contravention of the general protection provisions in Part 3-1 of the Act.

The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

On 27 February 2023, the Commission emailed correspondence to Ms Cohen’s nominated email address advising that the application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

If you don’t make payment within 7 days your application may be dismissed.”

An SMS notification was also sent to Ms Cohen’s nominated telephone number on 28 February 2023. The SMS advised Ms Cohen’s to take action in compliance with the email from the Commission regarding payment of the application fee.

On 2 March 2023, the Commission emailed correspondence to Ms Cohen’s nominated email address reminding her that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The correspondence instructed the applicant on how to pay the application fee or make a waiver application and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

A final attempt to contact Ms Cohen on her nominated telephone number was made by the Commission on 7 March 2023 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Ms Cohen that payment of the required fee was still outstanding.

To date, the applicant has not paid the 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 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Sharah Cohen filed an application with the Fair Work Commission under section 365 of the Fair Work Act 2009, alleging that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act. The application was not accompanied by the prescribed fee, nor was a completed application for waiver of the lodgement fee provided. Despite multiple attempts by the Commission to notify Ms Cohen of this deficiency and provide instructions on how to proceed, no action was taken to rectify the issue. Consequently, Deputy President Clancy dismissed the application. The decision hinged on the requirement that applications under section 365 of the Act must be accompanied by the prescribed fee or a completed waiver form. Given that Ms Cohen failed to address the fee issue, the application was deemed not to comply with section 367 of the Act.

The legal issue at the core of this case was whether the Fair Work Commission had the authority to dismiss the application due to the non-compliance with the fee requirement under section 367 of the Act. The relevant provisions of the Fair Work Act and the Fair Work Regulations 2009 were examined, alongside the criteria for dismissing an application as outlined in section 587 of the Act. The Commission's multiple attempts to notify Ms Cohen of the fee deficiency and provide instructions on how to address it were also considered. The Deputy President concluded that the application was not made in accordance with the Act and, in the absence of any action taken by Ms Cohen to rectify the issue, the application was dismissed.

In dismissing the application, Deputy President Clancy highlighted that the failure to include the prescribed fee or a completed waiver application rendered the application non-compliant with section 367 of the Act. Despite the statutory protection against dismissing applications under sections 365 or 773 on the grounds of frivolity or lack of reasonable prospects of success, the application was dismissed under section 587(1)(a) for not being made in accordance with the Act. The Deputy President exercised discretion to dismiss the application, noting that the applicant had not responded to the Commission’s notifications and had not taken any steps to rectify the fee issue. The application was thus dismissed with no further consideration of its merits.

The final order of the Fair Work Commission was to dismiss the application made by Ms Sharah Cohen under section 365 of the Fair Work Act 2009. The dismissal was based on the failure of the application to comply with section 367 of the Act due to the absence of the prescribed fee or a completed waiver application. The Commission’s attempts to notify Ms Cohen of the deficiency and provide instructions for compliance were unheeded, leading to the exercise of the discretion to dismiss the application in accordance with section 587(1)(a) of the Act.

Sharah Cohen v Ghanda

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established