Tatiana Motta v Murra Mia

[2021] FWC 6499

[2021] FWC 6499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Tatiana Motta
v
Murra Mia
(C2021/7391)

DEPUTY PRESIDENT COLMAN MELBOURNE, 2 DECEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Ms Tatiana Motta (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Murra Mia (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting her to the deficiency, nor has she rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 1 November 2021. On 4 November 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived if paying the fee would cause serious hardship. On 22 November 2021, the Commission wrote to the applicant a second time, noting that the lodgement fee remained unpaid and the application was incomplete because it did not identify the date her dismissal took effect. The letter stated that unless the application was completed and the fee was paid or a completed waiver application was received by 29 November 2021, the matter may be dismissed.

[3] The applicant has not amended her application. She has not paid the lodgement fee or submitted a completed waiver form. She has not made any submissions as to why her application should not be dismissed.

[4] 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.”

[5] There are two respects in which the application is not made in accordance with the Act. First, s 585 of the Act states that an application to the Commission ‘must be in accordance with the procedural rules (if any) relating to applications of that kind’. The application in the present matter did not state the date on which the dismissal took effect as it is required to do under the Fair Work Commission Rules (see Rule 8 and Schedule 1). The document filed by the applicant is not in substantial compliance with the relevant form. The application did not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

[6] Secondly, s 367 states that an application under s 365 ‘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. The applicant has neither paid the fee nor sought a fee waiver. The application is not made in accordance with s 367 of the Act.

[7] Both of these deficiencies engage s 587(1)(a). The Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was incomplete and that it had not been accompanied by the required fee. The applicant has taken no action to address the deficiencies. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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