Andrew Harding v RTM (Aus) Pty Ltd

[2022] FWC 2046

[2022] FWC 2046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Andrew Harding
v

RTM (Aus) Pty Ltd

(C2022/2761)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 AUGUST 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr Andrew Harding (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by RTM (Aus) Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. 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 him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 24 April 2022, it being filed by the applicant’s representative.

1. On 5 May 2022, the Commission telephoned the applicant. The Commission advised the applicant that he was required to pay the application fee or make a waiver application, and the applicant advised he would process payment the following day. The Commission sent a letter to both the applicant and the applicant’s representative with information on how to pay the filing fee and how to make a waiver application. The letter stated as follows:

“You have until 19 May 2022 to pay the fee or apply for a waiver.

If you don’t do this, your application may be dismissed. Please contact us if you have any questions about this.”

(emphasis omitted)

1. A further telephone call was made to the applicant on 19 May 2022 prompting payment over the phone. The applicant advised that he did not have his wallet and so could not pay at that point. Although the applicant said that he would return the Commission’s call in 20 minutes time to effect payment, the applicant did not do so.

1. On 23 May 2022, the Commission called the applicant again and advised that the application could go no further until the filing fee was paid or a waiver had been sought. The applicant confirmed that he understood. A letter was also sent to the applicant and the applicant’s representative advising how to pay the application fee or make a waiver application.

1. On 25 June 2022, an email was sent by the Commission to the applicant and his representative advising that the matter was being considered for dismissal for failure to pay the application fee or make a waiver application.

1. Attempts to phone the applicant were made on 24 July 2022 and 2 August 2022. However, the applicant’s nominated telephone number was no longer connecting, and no voicemail could be left.

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

Legislative framework

1. 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 $74.90. The regulations also allow for an application to be made for the fee to be waived.

1. 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.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. 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.

1. The application is dismissed.

DEPUTY PRESIDENT

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