Veronica Cashmere v Whitsunday Sailing Club Limited

[2023] FWC 182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Veronica Cashmere
v

Whitsunday Sailing Club Limited

(C2022/7152)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 23 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

Veronica Cashmere (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were 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) or by a completed application for waiver of the filing fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

The application was filed on 25 October 2022 by the applicant’s representative.

On 27 October 2022, the Commission emailed the applicant requesting payment of the filing fee or a completed waiver application. Instructions were provided explaining the process for doing so. The email put the applicant on notice that the application may be dismissed in the absence of compliance. An SMS notification was also sent advising the applicant to take action in relation to the Commission’s 27 October 2022 email.

On 2 November 2022, the Commission emailed the applicant requesting payment of the filing fee or a completed waiver application. The email notified the applicant that in the absence of compliance, the application may be dismissed.

The Commission called the applicant on 4 November and 8 November 2022. The calls were not answered, and there was no capacity to leave a voicemail message.

The Commission called the applicant’s representative on 20 January 2023. In accordance with the representative’s automated voicemail instructions, a voicemail was left in its “Tribunal fees” mailbox. The voicemail advised that the application would be dismissed for failure to pay the filing fee.

To date, the applicant has not paid the filing fee or filed a completed waiver application.

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.

…

(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.

Consideration and conclusion

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

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.

The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Veronica Cashmere, has lodged an application with the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009, alleging that her dismissal by Whitsunday Sailing Club Limited was in contravention of the general protection provisions. The Commission dismissed the application for failure to comply with the regulatory requirement to accompany the application with a prescribed fee or a completed application for fee waiver. The applicant did not respond to multiple notifications from the FWC about the missing fee or waiver application, despite being given ample opportunity to rectify the deficiency. This failure led to the dismissal of the application.
The primary legal issue in this case was whether the applicant's failure to comply with the regulatory fee requirement justified the dismissal of her application. Section 367 of the Act mandates that an application under section 365 must be accompanied by the prescribed fee or a completed fee waiver application. Given that the applicant did not meet this requirement and failed to take any action to address the deficiency despite numerous notifications, the FWC exercised its discretion under section 587(1)(a) of the Act to dismiss the application. The Commission found that the application was not made in accordance with the Act, thus justifying its dismissal.
The FWC, in dismissing the application, considered the statutory requirements and the procedural steps taken to notify the applicant of the deficiency. The applicant was informed via email on multiple occasions and was also notified via SMS and phone calls. Despite these efforts, the applicant did not respond or take any action to rectify the fee deficiency. The Commission concluded that the application was not made in accordance with the Act due to the missing fee or waiver application, leading to the dismissal of the application. The FWC's decision was based on the clear statutory requirement and the applicant's failure to comply despite being given multiple opportunities to do so.
The final orders of the Fair Work Commission were that the application made by Veronica Cashmere under section 365 of the Fair Work Act 2009 is dismissed. The dismissal was due to the applicant's failure to comply with the regulatory requirement to accompany the application with the prescribed fee or a completed application for fee waiver, despite being notified multiple times of the deficiency.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established