Anthony Brereton v Riverside Meats Abattoirs Pty Ltd T/A Riverside Meats

[2018] FWC 3270

[2018] FWC 3270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Anthony Brereton
v
Riverside Meats Abattoirs Pty Ltd T/A Riverside Meats; Wayne Tatt; Chris Peat
(C2018/1631)

DEPUTY PRESIDENT KOVACIC CANBERRA, 8 JUNE 2018

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Mr Anthony Brereton (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 26 March 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Riverside Meats Abattoirs Pty Ltd T/A Riverside Meats; Wayne John Tatt and Mr Chris Peat (the Respondents) in contravention of the general protections provisions in the Act. Mr Brereton application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 5 April 2018 the Commission contacted Mr Brereton via telephone regarding his application. Mr Brereton was asked to provide the Commission with payment of the lodment fee or an application for waiver of the lodgment fee. Mr Brereton indicated that he would submit an application for waiver of the lodgement fee. A letter was also sent, asking him to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Brereton by telephone on 13 and 23 April regarding his application. Mr Brereton did not answer the calls and voice messages were left asking him to contact the Commission regarding his application.

[4] The Commission again attempted to contact Mr Brereton by telephone on 1 May 2018. Mr Brereton did not answer the call and a voice message was not able to be left. On 4 May 2018 the Commission sent a letter to Mr Brereton. The correspondence included an application for fee waiver and foreshadowed that his application may be dismissed unless he completed either the waiver form or paid the lodgement fee.

[5] On 7 May 2018 Mr Brereton contacted the Commission and advised that he was unable to pay the application fee. The Commission then posted Mr Brereton an application for fee waiver.

[6] The Commission subsequently attempted to contact Mr Brereton on two further occasions i.e. 22 May and 5 June 2018. On both occasions it was foreshadowed that Mr Brereton’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Brereton the Commission has not received a completed waiver form or lodgment fee payment.

[7] 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.”

[8] 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.”

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

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