Yesim Karasu v Sex Worker Outreach Project
[2023] FWC 167
•20 JANUARY 2023
| [2023] FWC 167 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Yesim Karasu
v
Sex Worker Outreach Project
(C2022/5936)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 20 JANUARY 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
Yesim Karasu (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 August 2022.
On 29 August 2022, the applicant’s application for a fee waiver was refused, with correspondence to that effect being sent to the applicant.
On 14 September 2022, the Commission called the applicant advising them that the waiver application was refused.
On 15 September 2022, the Commission emailed the applicant with details as to how to pay the filing fee. The email put the applicant on notice that the matter was at risk of being dismissed. A text message to that effect was sent to the applicant on 16 September 2022 and a further email to similar effect was sent on 19 September 2022.
On 21 September 2022, the Commission called the applicant leaving a voicemail advising that the filing fee remained unpaid. Further voicemails were left on 26 September and 5 October 2022.
On 19 January 2023, the Commission made an unsuccessful attempt to call the applicant.
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 not paid the filing fee. 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
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