Taylah Berry v Caffe Cherry Beans T/A Damso Pty Ltd

[2016] FWC 3618

[2016] FWC 3618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Taylah Berry
v
Caffe Cherry Beans T/A Damso Pty Ltd
(C2016/3526)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 6 JUNE 2016

Application to deal with contraventions involving dismissal.

[1] Ms Taylah Berry (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 26 April 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Caffee Cherry Beans T/A Damso Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Berry’s application was incomplete in that parts of the application were missing, it was not accompanied by payment of the required application fee, or by a request to have the application fee waived.

[2] On 26 April 2016 the Commission attempted to contact Ms Berry via telephone regarding her incomplete application. Ms Berry provided a credit card payment, which was subsequently declined. She advised the Commission that she would submit a completed application and advise when to re-attempt the payment. An email was sent later that day confirming the issues discussed in the telephone conversation. Specifically, the email reiterated that a completed application along with a completed waiver form or lodgement fee was required within 14 days or the application may be dismissed.

[3] The Commission subsequently attempted to contact Ms Berry on a number of occasions, i.e. 10, 11 and 16 May 2016, by telephone, email and letter regarding her application and incomplete payment. On each occasion it was foreshadowed that Ms Berry’s application may be dismissed unless she completed the application and the waiver form or paid the lodgement fee.

[4] On 16 May 2016 the Commission received an email from Ms Berry containing instructions to reattempt payment on 20 May 2016. On 17 May 2016 the Commission received Ms Berry’s completed application. The Commission subsequently attempted to contact Ms Berry on 23 and 24 May 2016 to attempt payment and, again, on each attempt it was foreshadowed that the application may be dismissed. Despite these repeated attempts to contact Ms Berry the Commission has received no completed waiver form or payment of the application fee.

[5] Section 587 of the Act provides:

“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:

(c) on its own initiative; or
(d) on application.”

[6] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or refunded.”

Ms Berry has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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