Stacey Lee Strange v Securitas

[2022] FWC 917

[2022] FWC 917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Stacey Lee Strange
v

Securitas

(C2022/1458)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 27 APRIL 2022

Application to deal with contraventions involving dismissal

1. Ms Stacey Lee Strange (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed by the respondent 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 lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting her 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 received by the Commission on 28 February 2022.

1. On 1 March 2022, the Commission telephoned the applicant. A voicemail message was left advising of the outstanding lodgement fee and requesting that the applicant contact the Commission. On this day, the Commission also sent the applicant:

(a)   a text message concerning the unpaid lodgement fee; and

(b)   email correspondence requesting payment of the lodgement fee or provision of a waiver application by 15 March 2022.

1. On 15 March 2022, the Commission telephoned the applicant. The applicant answered the phone, however when the caller identified themselves as being from the Commission the call was disconnected. The telephone was not answered when the Commission made a further call to the applicant. A voice message was left reminding the applicant that the lodgement fee remained outstanding.

1. On 17 March 2022, the Commission telephoned the applicant. A voice message was left advising that payment of the lodgement fee or a waiver application was required by close of business that day or the application may be dismissed.

1. On 21 March 2022, the Commission telephoned the applicant. The applicant answered the phone, however when the caller identified themselves as being from the Commission the call was disconnected. Correspondence was issued that day which advised the applicant that she needed to pay the lodgement fee or file a waiver application by 28 March 2022 or the application may be dismissed.

1. On 1 April 2022, the Associate to the National Practice Leader called the applicant. The applicant advised she had started a new job and could not complete the waiver application as she was overwhelmed. The applicant indicated that she wanted to proceed with the application and was informed that a follow up would be made on 5 April 2022.

1. On 5 April 2022, the applicant was sent an email advising that she was required to submit a waiver application by 4pm on Thursday 7 April 2022 or the application may be dismissed. The applicant responded to the email and stated that the waiver application would be filed the following day.

1. On 8 April 2022, the applicant was sent an email advising that in the absence of a response by 13 April 2022, the application may be dismissed. The email attached information explaining how the application fee could be paid, or how a waiver application could be made.

1. To date, the Commission has not received payment of the lodgement fee or 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.

2. 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.

(emphasis added) 

Consideration and disposition

1. 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. 

2. 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.

3. The application is dismissed.

DEPUTY PRESIDENT

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