Taylah Riolo v Oxworks Services Pty Ltd
[2023] FWC 965
•24 APRIL 2023
| [2023] FWC 965 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Taylah Riolo
v
Oxworks Services Pty Ltd
(C2023/1271)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 24 APRIL 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
On 7 March 2023, Ms Taylah Riolo (Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Ms Riolo 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). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.
On 9 March 2023, the Commission emailed correspondence to Ms Riolo’s nominated email address advising her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. The email further stated as follows:
“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.
If you don’t make payment within 7 days your application may be dismissed.”
An SMS notification was also sent to Ms Riolo’s nominated telephone number on 10 March 2023. The SMS advised Ms Riolo to take action in compliance with the email from the Commission regarding payment of the application fee.
On 16 March 2023, the Commission emailed correspondence to Ms Riolo’s nominated email address reminding her that her application required payment of the application fee or a completed Form F80 if she wished to proceed with her application. The correspondence instructed Ms Riolo on how to pay the application fee or complete the Form F80, and further stated as follows:
“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”
Later that day, Ms Riolo emailed the Commission enquiring about how to have the application fee waived.
On 30 March 2023, the Commission contacted Ms Riolo on her nominated telephone number and guided her in downloading a Form F80 for her completion and submission.
On 6 April 2023, the Commission attempted to contact Ms Riolo on her nominated telephone number to obtain payment or a completed Form F80, however, Ms Riolo could not be reached. A voicemail message was left explaining to her that her matter was at risk of dismissal.
A final attempt to contact Ms Riolo was made by the Commission on 18 April 2023. However, Ms Riolo could not be reached. A voicemail message was left requesting that Ms Riolo contact the Commission.
To date, Ms Riolo has not paid the lodgement fee or filed a completed Form F80.
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 $77.80. 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.
Consideration and conclusion
In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.
I have noted that when filing the application on 7 March 2023, Ms Riolo’s Representative informed the Commission that Ms Riolo would be responsible for the payment of the application fee and should be contacted on her nominated telephone number for the arrangement of payment. Further, Ms Riolo’s Representative also advised that they should be notified by reply email if any issues arose surrounding timely payment of the application fee. However, I have noted that Ms Riolo responded directly to email correspondence from the Commission on 16 March 2023 and that there was direct telephone contact between the Commission and Ms Riolo on 30 March 2023 regarding the completion of a Form F80. I am satisfied this direct contact between Ms Riolo and the Commission obviated any need to revert to Ms Riolo’s representative. Additionally, I am of the view that Ms Riolo had sufficient notice, and was well aware, that her application was in need of either payment of the application fee or the filing of a Form F80, and at risk of dismissal if neither was forthcoming.
The many attempts by the Commission to contact Ms Riolo, the numerous reminders and the multiple requests that have not been complied with leave me satisfied that it is appropriate in all of the circumstances to dismiss the purported application.
The application is dismissed. An Order[2] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].
[2] PR761331.
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