Stephanie Lucken v Mingenew Shire

[2019] FWC 2598

[2019] FWC 2598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Stephanie Lucken
v
Mingenew Shire
(C2019/1091)

DEPUTY PRESIDENT BINET PERTH, 6 MAY 2019

Application to deal with other contraventions dispute.

[1] On 17 February 2019, Ms Stephanie Lucken (Ms Lucken) filed an application (Application) pursuant to section 372 of the Fair Work Act 2009 (Cth) (FW Act) seeking to have the Fair Work Commission (FWC) deal with a general protections dispute against her employer, Mingenew Shire.

[2] An application fee of $71.90 must be paid with an application for the FWC to deal with a general protections dispute.

[3] On 19 February 2019 Ms Lucken contacted the FWC Helpline to confirm that her application had been received. A FWC Customer Service Representative (CSR) confirmed that it had been received however some sections of the form were missing or incomplete and asked Ms Lucken to file an amended form.

[4] On 20 February 2019 the FWC sent Ms Lucken the following letter:

“Dear Mrs Lucken,

Application for the Fair Work Commission to deal with a General Protections Dispute

Title: Lucken v Mingenew Shire

Fair Work Commission Matter Number: C2019/1091

The Fair Work Commission (the Commission) received a general protections dispute application from you on 17 February 2019.

This application was incomplete with some sections on the Form F8 not completed. These sections will need to be completed and the Form returned to the Commission. A copy of the Form F8 filed by you is attached.

This application was made without payment of the application fee of $71.90. You can apply to have the application fee waived if paying the fee would cause you serious hardship. The Form F80 - Waiver of application fee is attached.

If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting Matter Number C2019/1091.

In the absence of any advice from you within 14 days of the date of this letter, this application may be dismissed.

For more information you can telephone the Commission on 1300 799 675 or go to sincerely,

Fair Work Commission”

[5] On 11 March 2019, a FWC CSR phoned Ms Lucken regarding the incomplete portions of the Application. Ms Lucken explained that she was attempting to get legal advice and was not sure how to complete the questions. The FWC CSR informed Ms Lucken that the Application may be dismissed if the application form was not completed and the fee not paid within two days.

[6] On 15 March 2019, a FWC CSR again rang and spoke to Ms Lucken who advised she would attempt to get the amended application in by close of business the same day. The FWC CSR warned Ms Lucken that in the absence of any action on her part the Application would be allocated to a Member of the FWC and the Application could be dismissed.

[7] On 19 March 2019, the FWC CSR again called Ms Lucken reminding her that the filing fee had not been paid nor a waiver sought. A waiver form was emailed to Ms Lucken the same day.

[8] To date the FWC has not received any further communication from Ms Lucken.

[9] I am satisfied that Ms Lucken has failed to pay the application fee that attaches to a general protections dispute and has not sought a waiver of the fee. Ms Lucken also has not completed the form as required.

[10] Section 587(1) of the FW Act provides that:

“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.”

[11] Section 587(1) does not limit the circumstances in which the Commission may dismiss an application and plainly the Commission may do so when an application is not made in accordance with the Act (s 587(1)(a)). Failing to pay the application fee falls within this subsection.

[12] Consequently, the Application is dismissed pursuant to section 587 of the FW Act.

[13] An Order (PR707083) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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