Simone Healy v Marsh Pty Ltd

[2023] FWC 219

[2023] FWC 219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Simone Healy
v

Marsh Pty Ltd

(C2022/8447)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 23 February 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Ms Simone Healy (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 this been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed on 21 December 2022.

1. On 22 December 2022, the Commission emailed the applicant advising that their application required payment of the filing fee or a completed waiver application. The email contained instructions explaining how to do so. The email put the applicant on notice that the application may be dismissed if payment was not made within seven days.

1. On 29 December 2022, the Commission sent a further email to the applicant regarding payment of the filing fee, which remained unpaid. The email instructed the applicant on how to pay the filing fee or make a waiver application.

1. The Commission telephoned the applicant on 6 January 2023. The call was answered, and the applicant said that she sent a completed waiver application to the Commission on 27 December 2022. The applicant was advised that the completed waiver application was not received and requested that the email be resent as soon as possible.

1. In the absence of compliance, the Commission telephoned the applicant on 11 January 2023. The call was not answered, and there was no facility allowing a voicemail to be left.

1. On 24 January 2023, the Commission emailed the applicant advising that the payment issue remained unresolved and that the matter would be dismissed after close of business 31 January 2023.

1. To date, the applicant has not paid the filing 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 $77.80. 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 filing 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 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.

1. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR749956>