Tiana Langer v TNTLP Pty Limited

[2024] FWC 1031

[2024] FWC 1031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Tiana Langer
v

TNTLP Pty Limited

(C2024/1025)

VICE PRESIDENT CATANZARITI SYDNEY, 19 APRIL 2024

Application to deal with contraventions involving dismissal

1. On 19 February 2024, Ms Tiana Langer (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The Applicant, nor their representative, Employee Dismissals, has responded to correspondence from the Fair Work Commission (the Commission), alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.

Context

1. On 20 February 2024, the Commission sent a “Payment Request” email to the Applicant and their representative, and the Applicant was also sent a SMS to request payment.

1. The Commission attempted to call the Applicant on 27 February 2024, left a voice message requesting payment of the application fee. A follow-up “Reminder to Pay” email was sent to the Applicant on the same day.

1. Another call was made to the Applicant and their Representative on 15 March 2024, and a voice message left advising that the payment of the application fee is still outstanding and  the matter is at risk of being dismissed if we don’t hear back by close of business.

2. On 18 March 2024 an email was sent to the Applicant’s representative advising that the matter remains unpaid, nor has a waiver been received, if no response is received by 19 March 2024 the matter may be dismissed without further notice.

1. The matter was referred to my Chambers on 11 April 2024, and another attempt to contact the Applicant and their representative by telephone was made on that day.

1. On the same day, the telephone call was followed-up with a final notice email to the Applicant and their representative requesting a response to the outstanding payment of the required lodgement fee, or alternatively a waiver application, to be made by 16 April 2024.

1. A telephone call was made to the Applicant on 17 April 2024, there was no answer and a voice message was left advising that if “payment is not received by close of business a decision will be issued tomorrow and published on the Fair Work Commission website”. 

1. To date, the Applicant has not paid the required lodgement fee or filed a waiver application.

Legislative framework

1. 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 $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. 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.

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.”

1. Consideration and conclusion

1. The Applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. 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.

1. The application is dismissed.

VICE PRESIDENT

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