Vaska Dukleski v Illawarra Estate Agents

[2019] FWC 7710

[2019] FWC 7710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Vaska Dukleski
v
Illawarra Estate Agents
(C2019/4451)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 8 NOVEMBER 2019

Application to deal with contraventions involving dismissal.

[1] Ms Vaska Dukleski (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act). She alleges that she was dismissed by Illawarra Estate Agents (Respondent) in contravention of the general protection provisions of the Act.

[2] I have determined to dismiss the application. The Applicant has failed to pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application). The reasons for this decision follow.

Context

[3] The application was received by the Commission on 18 July 2019.

[4] On 19 July 2019, a letter was emailed to the Applicant advising that she must pay the lodgement fee or file a waiver application within 14 days, or the application may be dismissed.

[5] On 20 July 2019, the Applicant emailed the Commission requesting a return call so that she could make payment of the lodgement fee by telephone.

[6] On 23 July 2019, the Commission telephoned the Applicant. A voicemail message was left requesting a return call.

[7] The Applicant telephoned the Commission that same day. A voicemail message was left requesting a further call back.

[8] The next business day, the Commission telephoned the Applicant. During the call, the Applicant was advised that to proceed with her application, she must pay the lodgement fee or complete a waiver application. The Applicant was advised that if the application remained incomplete, it may be dismissed.

[9] In the absence of payment of the lodgement fee or receipt of a completed waiver application, the Commission attempted to contact the Applicant on two occasions, as follows:

(a) at 11:47am on 5 August 2019, by telephone. A voicemail message was left.

(b) at 2:10pm on 13 August 2019, by email, which explained that the application remained incomplete and may be dismissed unless the lodgement fee was paid, or a completed waiver application was received within 7 days.

[10] On 29 August 2019, the Commission telephoned that Applicant. The Applicant said that she required one week to decide whether she would be pressing her application.

[11] The Commission telephoned the Applicant on 5, 13 and 17 September 2019. On each occasion, a voicemail message was left advising that the purpose to the call was to determine whether the Applicant intended on progressing her application, which remained incomplete.

[12] On 1 October 2019, an email was sent to the Applicant advising that the application remained incomplete and it would be dismissed if the Applicant did not contact the Commission by 4 October 2019.

[13] In the absence of any contact from the Applicant, a further telephone call was made to the Applicant on 24 October 2019. The call was unanswered.

[14] To date, the Commission has not received payment of the lodgement fee or provided a completed waiver application.

Legislative framework

[15] 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.”

(emphasis added)

[16] Section 587 of the Act provides that:

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

[17] The Applicant has failed to pay the lodgement fee or provide a completed waiver application. Accordingly, the application is incomplete. The Applicant has not responded to numerous attempts by the Commission to contact her regarding the incomplete application.

[18] In these circumstances, I am satisfied that the Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s.587(1)(a) of the Act.

[19] An order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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