Application by James Robert Keating Summary

[2025] FWC 2959

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.365—General protections

Application by James Robert Keating

(C2025/5482)

DEPUTY PRESIDENT EASTON

SYDNEY, 3 OCTOBER 2025

Application to deal with contraventions involving dismissal – application fee not paid or waived – application not made in accordance with the Act – application dismissed.

On 13 June 2025, Mr James Robert Keating made a general protections application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth).

Mr Keating’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.367) has not been paid or waived.

Section 587 confers a discretion on the Commission to dismiss Mr Keating’s application if the application is not made in accordance with the Act. Mr Keating has been given ample opportunity to rectify the deficiency in the application and has also had ample opportunity to show why his application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I have decided to dismiss Mr Keating’s general protections claim using the power available under s.587(1)(a) and make the following order:

The application under s.365 of the Fair Work Act 2009 (Cth) made by Mr James Robert Keating on 13 June 2025 is dismissed.

DEPUTY PRESIDENT
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CaseChat Overview and Summary

The Fair Work Commission considered an application by James Robert Keating, who sought relief under section 365 of the Fair Work Act 2009, pertaining to general protections against unfair dismissal. Keating filed his application on 13 June 2025, but it was not made in accordance with the requirements of the Act, specifically, he had not paid the prescribed application fee or had it waived. This failure to adhere to the statutory requirements meant the application did not comply with section 587(1)(a) of the Act. The Deputy President, Easton, was tasked with determining whether the application could be entertained under these circumstances.

The legal issue before the Deputy President was whether the application could be dismissed for non-compliance with the statutory requirements, and if so, whether it was appropriate to exercise the discretion conferred by section 587 of the Act. The Deputy President noted that the Act grants the Commission the discretion to dismiss an application if it is not made in accordance with the Act. Keating had been given multiple opportunities to remedy the fee issue and to provide justification for why his application should not be dismissed. The Deputy President weighed the statutory discretion against the need for procedural compliance, referencing previous cases such as Bond v Carbridge Pty Ltd T/A Carbridge.

After considering the statutory provisions, the Deputy President determined that Keating's application did not comply with the requirements of the Act due to the unpaid application fee. The Deputy President exercised the discretion provided under section 587(1)(a) of the Act to dismiss Keating's general protections claim. The decision was made in light of the ample opportunity given to Keating to rectify the deficiency and the precedent set in similar cases. The Deputy President concluded by formally dismissing Keating's application and making an order to that effect.

Application by James Robert Keating

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established