Sheridyn Benton v Floorwise Pty Ltd

[2023] FWC 60

[2023] FWC 60

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Sheridyn Benton
v

Floorwise Pty Ltd

(C2022/5399)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Sheridyn Benton (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. 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 filing 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

1. The application was made on 30 July 2022.

1. On 2 August 2022, the Commission telephoned the applicant, unsuccessfully, with no option for a voice message to be left.

1. On 9 August 2022, the Commission emailed correspondence to the applicant’s nominated email address advising that their application required payment of the application fee or a completed waiver form if they wished to proceed with the application. The email further stated as follows:

“We have not received your payment. We can't progress your application until we receive it.”

(emphasis omitted)

1. On 26 August 2022, the Commission made a follow-up call, again unsuccessfully with no option to leave a voice message.

1. On 19 August 2022, the Commission emailed the applicant setting a timeline for the dismissal of the application for failure to pay the application fee or make a waiver application.

1. On 7 October 2022, the applicant emailed the Commission expressing her confusion with the email, noting the issue was dealt with in 2017. The applicant sent a further email advising of her new mobile number.

1. The Commission attempted to call the applicant’s new mobile number on 10 October, 11 October and 31 October 2022. Voicemails were left on each occasion and the applicant was put on notice the application may be dismissed.

1. To date, the applicant has not paid the application fee or filed a completed waiver application.

Legislative framework

1. 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 $74.90. The regulations also allow for an application to be made for the fee to be waived.

1. 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

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

1. 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.

2. The application is dismissed.

DEPUTY PRESIDENT

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