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Fair Work Act 2009
s.365—General protections
Kristy Rose
v
Moorditch Gurlongga Association Inc
(C2020/6655)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021
Application to deal with contraventions involving dismissal.
[1] Mrs Kristy Rose (Applicant) has made an application under s 365 of the Fair Work
Act 2009 (Cth) (Act). She alleges that she was dismissed by Moorditch Gurlongga
Association Inc in contravention of the general protection provisions of the Act.
[2] I have decided to dismiss the application. The reasons for this decision follow.
Context
[3] The application was received by the Commission on 28 August 2020.
[4] On 31 August 2020, the Commission telephoned the Applicant regarding the unpaid
lodgement fee. During the call, the Applicant requested that she be provided a copy of the
application for waiver of the lodgement fee (waiver application). That day, a letter was
emailed to the Applicant advising that she must pay the lodgement fee or file the enclosed
waiver application within 14 days, or the application may be dismissed.
[5] On 14 September 2020, the Commission telephoned the Applicant on two separate
occasions. On each occasion the call was unanswered, and a voicemail message was left
advising the Applicant that her application may be dismissed unless she makes payment of the
lodgement fee or files a completed waiver application. The Applicant was requested to
contact the Commission.
[6] Later the same day, the Applicant telephoned the Commission. During the call, the
Applicant was advised of the fact that she must pay the lodgement fee or file a completed
waiver application, or her application may be dismissed. The Applicant advised that she
would complete the waiver application and file it with the Commission as soon as possible.
[7] In the absence of a completed waiver application, on 17 September 2020 a letter was
emailed to the Applicant and her representative Mr Michael Fredericks of Employee
Dismissal Claims. The letter advised that the Applicant was required to pay the lodgement fee
or file a completed waiver application within 14 days, or the application may be dismissed. A
[2021] FWC 908
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 908
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SMS text message was also sent to the Applicant’s nominated contact number requesting that
she contact the Commission because of a problem with her application.
[8] Later that day, the Commission telephoned the Applicant. The call was unanswered,
and a voicemail message was left directing the Applicant to access her email to which a
waiver application had previously been sent. The Applicant was requested to file the
completed waiver application with the Commission.
[9] On 9 October 2020, Mr John Bingham of Employee Dismissal Claims contacted the
Commission regarding the application. He was advised that the application remained
incomplete. Mr Bingham did not seek to make payment of the lodgement fee or indicate that
the waiver application would be filed during the telephone call.
[10] To date, neither the Applicant nor her representative have paid the lodgement fee or
filed a completed waiver application.
Legislative framework
[11] 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)
[12] 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:
[2021] FWC 908
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(a) on its own initiative; or
(b) on application.
(emphasis added)
Consideration and conclusion
[13] Despite the Commission’s attempts to progress the application, the Applicant and her
representative have failed to pay the lodgement fee or file a completed waiver application.
Accordingly, the application is incomplete.
[14] 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.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR727138
WORK COMMISSION THE SEAL OF THE
