Application by Jarryd Kerr

[2020] FWC 1496

[2020] FWC 1496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Application by Jarryd Kerr
(C2019/7652)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 4 JUNE 2020

Application to deal with an unlawful termination dispute.

[1] Mr Jarryd Kerr (Applicant) has made an unlawful termination application under s.773 of the Fair Work Act 2009 (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 15 December 2019.

[4] Two preliminary issues were identified with the application:

(a) The application was incomplete as the lodgement fee was not paid and the application for waiver of the lodgement fee (waiver application) filed by the Applicant had not been completed correctly and was therefore deficient.

(b) The application form did not contain the Respondent’s details, and therefore it was unclear if the Applicant was entitled to make a general protections application in relation to the matter. In such a case, s.723 of the Act provides that a person must not make an unlawful termination application if he or she is entitled to make a general protections court application in relation to the conduct.

[5] On 16 December 2019, the Commission telephoned the Applicant. He did not answer the call and a voicemail message was left requesting that he contact the Commission. A letter of the same date was emailed to the Applicant. The letter provided information on general protection disputes under Part 3-1 of the Act.

[6] In the absence of any communication from the Applicant, the Commission telephoned him on five separate occasions to discuss the matters addressed in the correspondence emailed to him on 16 December 2019. On each of the occasions listed below, a voicemail message was left requesting the Applicant contact the Commission:

(a) at 1:08pm on 17 December 2019;

(b) at 11:30am on 20 December 2019;

(c) at 11:54am on 31 December 2019;

(d) at 4:11pm on 3 January 2020; and

(e) at 11:36am on 9 January 2020.

[7] On 13 January 2020, a letter was emailed to the Applicant advising that his application remained incomplete as the lodgement fee was not paid and the Commission had not received a correctly completed waiver application. The Applicant was advised that to proceed with his application, he must pay the lodgement fee or file a waiver application, or the application may be dismissed.

[8] Further correspondence was emailed to the Applicant on 20 March 2020, in which he was given a further opportunity to complete the necessary waiver form or make payment of the lodgment fee by 10 April 2020.

[9] To date, the Commission has not received payment of the lodgement fee or a correctly completed waiver application. The Applicant has not responded to any communication from the Commission to discuss the application.

Legislative framework

[10] In relation to an application made pursuant to s.773 of the Act, s.775 provides:

775 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 773; and

(b) a method for indexing the fee; and

I the circumstances in which all or part of the fee may be waived or refunded.”

(emphasis added)

[11] 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.”

(emphasis added)

Consideration and conclusion

[12] The Applicant has failed to pay the lodgement fee or file a correctly completed waiver application. Accordingly, the application is incomplete. The Applicant has not responded to numerous attempts by the Commission to contact him regarding the application.

[13] In these circumstances, I am satisfied that the Applicant has failed to comply with s.775(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

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