Zahara Michails v Cue & Co Pty Ltd

[2019] FWC 3701

[2019] FWC 3701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Zahara Michails
v
Cue & Co Pty Ltd
(C2019/1710)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Ms Zahara Michails (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 March 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Cue & Co Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Michails’ application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 18 March 2019 a voicemail was left advising the Applicant that the lodgement fee remained unpaid. This was followed later that day by an email requesting that she provide the Commission with payment or an application for waiver of the lodgement fee within 14 days or her application may be dismissed. A further voicemail was left for the Applicant on 11 April 2019 requesting her to contact the Commission.

[3] On 8 May 2019 the Commission contacted the Applicant by telephone. During that call the Applicant said that she was not aware of the need to pay a filing fee, with the Applicant advised that this information was available on the Commission’s website and the application form. An email was also sent to the Applicant and the Applicant’s representative regarding the payment. The email stated in the absence of any advice regarding the application within seven days the application may be dismissed.

[4] In the absence of any response, the Commission unsuccessfully sought to contact the Applicant by telephone on 17 May 2019. A voicemail was left foreshadowing the application may be dismissed if no response was provided to Chambers. Despite the Commission’s repeated requests a completed waiver form or lodgement fee payment has not been received.

[5] Section 587 of the Act provides:

“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.”

[6] 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.”

[7] Ms Michails has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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