Subeen Ji v Unknown
[2022] FWC 592
| [2022] FWC 592 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Subeen Ji
v
Unknown
(C2022/1197)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 29 MARCH 2022 |
Application to deal with contraventions involving dismissal – application dismissed.
Miss Subeen Ji (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
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
The application was received by the Commission on 16 February 2022. The F8 used to make the application was incomplete. It did not contain any of the respondent employer’s details and was missing information concerning payment of the application fee. Relevantly, the application fee was not paid.
On 17 February 2022, the Commission telephoned the applicant to request payment of the application fee or a waiver application and for her to resubmit her F8 or provide the respondent’s details by email. There was no answer and no voicemail service available. The Commission then sent a letter by email to the applicant’s preferred email address informing her of the deficiencies in her application. The letter stated as follows:
“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 C2022/1197.
In the absence of any advice from you within 14 days of the date of this letter, this application may be dismissed.”
(emphasis in original)
On 20 February 2022, the applicant emailed the Commission an F80, being the document prescribed for a waiver application. The F80 was incomplete, missing answers to several questions, such that the waiver application could not proceed.
On 21 February 2022, the Commission telephoned the applicant. The applicant did not answer the call but a voicemail was left requesting resubmission of the F8 and F80 with the missing information.
On 3 March 2022, the Commission again called the applicant unsuccessfully and left a voicemail. The Commission requested the missing information in the F8 and F80 and the and notified the applicant that if she did not provide this information her application may be dismissed.
On 4 March 2022, the Commission left another voicemail with the applicant providing the same information as was provided in the previous voicemail. The Commission then sent a letter by email to the applicant’s preferred email address. The letter set out the deficiencies in the F8 and F80 and stated:
“In the absence of any advice from you within 7 calendar days of the date of this letter, this application may be dismissed.”
(emphasis in original) (highlighting removed)
My Chambers emailed the applicant on her preferred email address on 18 March 2022. The email outlined the steps taken by the Commission to contact the applicant up to this point as set out in this decision. The email also requested the applicant provide the missing information in the F8 and F80, or to instead pay the application fee, and notified her that the matter would be considered for dismissal if no response was received by 4:00pm on 24 March 2022.
My Chambers sent a further email to the applicant’s preferred email address on 23 March 2022 referring to the email sent 18 March 2022 and reminding her that her application may be dismissed.
To date, the applicant has not paid the lodgement fee or filed a completed waiver application.
Legislative framework
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.
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 conclusion
The applicant has neither paid the lodgement fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.
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.
The application is dismissed.
DEPUTY PRESIDENT
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