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Fair Work Act 2009
s.365—General protections
Kerry Rockstroh
v
IFYS Limited
(C2023/3717)
VICE PRESIDENT CATANZARITI SYDNEY, 21 JULY 2023
Application to deal with contraventions involving dismissal – application dismissed.
[1] On 23 June 2023, Kerry Rockstroh (applicant) has made an application under s.365 of
the Fair Work Act 2009 (Cth) (Act). The applicant alleges that she was dismissed in
contravention of the general protection provisions in Part 3-1 of the Act.
[2] 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 lodgement
fee (waiver application). The applicant has not responded to correspondence from the
Commission alerting her to this deficiency, nor has the deficiency been rectified. I have decided
to dismiss the application for the following reasons.
Context
[3] On 28 June 2023, the Commission contacted Ms Rockstroh on the nominated mobile
phone number and a recorded message advised that the number is not in service.
[4] On 28 June 2023, the Commission contacted the applicant’s nominated representative,
Employee Dismissals on their nominated phone number. The call was not answered, and a
voicemail was left advising to contact the Commission.
[5] On 30 June 2023, the Commission made multiple unsuccessful attempts to contact
Employee Dismissals on their nominated phone number.
[6] On 30 June 2023, the Commission emailed correspondence to Ms Rockstroh’s
nominated email address and also Employee Dismissals’ nominated email address reminding
that her application required payment of the filing fee or a completed waiver form if she wished
to proceed with the application. The correspondence instructed the applicant on how to pay the
application fee or make a waiver application and further stated as follows:
“You have until Friday 14 July 2023 to do this or your application may be
dismissed.”.
[2023] FWC 1798
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1798
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[7] Final attempts to contact Ms Rockstroh’s representative on their nominated telephone
number were made by the Commission on 6 July 2023 and 14 July 2023 to obtain payment or
a completed waiver form. The calls were not answered, and a voicemail message was left on
both occasions advising that payment of the required fee was still outstanding.
[8] To date, the applicant has not paid the lodgement fee or filed a completed waiver
application.
Legislative framework
[9] 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.
[10] 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, or an application under section 527F that does not consist solely of
an application for a stop sexual harassment order, 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
[2023] FWC 1798
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[11] The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly,
the application is not made in accordance with s.367 of the Act.
[12] 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.
[13] The application is dismissed.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR764472
THE FAIR WORK AHOTRALI NOISSIWAND THE SEAA
