Shu Yin Chao v Benara Nurseries

[2013] FWC 6156

[2013] FWC 6156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Shu Yin Chao
v
Benara Nurseries
(C2013/5440)

COMMISSIONER WILLIAMS PERTH, 27 AUGUST 2013

Application to deal with contraventions involving dismissal - incomplete application.

[1] On 2 August 2013 Ms Shu Yin Chao (the applicant) sent an application by email to the Fair Work Commission Perth registry. The application was made under section 365 of the Fair Work Act 2009 (the Act).

[2] On 5 August 2013 staff of the Fair Work Commission sent correspondence by email to the applicant explaining her application had been received but was made without payment of the lodgement fee. The letter explained in circumstances where applicants are unable to pay the lodgement fee they are able to apply to have the fee waived. The correspondence included a fee waiver form for this purpose.

[3] The correspondence explained that if the applicant wished to proceed with her application she needed to either pay the lodgement fee or complete an application for a fee waiver and that this should be done within 14 days.

[4] The correspondence explained that if this was not done the application may be dismissed.

[5] On 12 August 2013 staff of the Fair Work Commission attempted to contact the applicant on her mobile phone however her phone was continually busy.

[6] On 20 August 2013 staff of the Fair Work Commission attempted to contact the applicant on her mobile phone and left a message to advise the lodgement fee or application for waiver of the fee was required before her application could progress further and if this was not received then her application may be dismissed.

[7] As at the date of this decision the applicant has not been in contact with the Fair Work Commission and has neither paid the lodgement fee nor completed and returned an application for waiver of the fee.

[8] Section 587 of the Act empowers the Fair Work Commission to dismiss an application on its own initiative if it has not been made in accordance with the Act.

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[9] The lodgement fee for this application has not been paid nor has the applicant sought to have the lodgement fee waived and as such this application has not been made in accordance with the Act.

[10] The applicant has repeatedly failed to respond to requests from the Fair Work Commission to resolve this and has been advised that failure to do so may mean her application is dismissed.

[11] In these circumstances it is my decision that this application should be dismissed. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

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