Arthur Peios v Peter Warren Automotive Pty Ltd T/A Peter Warren Automotive Sydney Auto World

[2019] FWC 16

[2019] FWC 16

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Arthur Peios
v
Peter Warren Automotive Pty Ltd T/A Peter Warren Automotive Sydney Auto World
(C2018/5717)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 JANUARY 2019

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

[1] Mr Arthur Peios (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 8 October 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Peter Warren Automotive Pty Ltd T/A Peter Warren Automotive Sydney Auto World(the Respondent) in contravention of the general protections provisions in the Act. Mr Peios’ application was filed on an incorrect form and no payment or application for waiver of the lodgment fee was completed.

[2] On 12 October 2018 the Commission contacted Mr Peios’ Representative via telephone regarding the Applicant’s application. His Representative confirmed they would be happy to lodge an alternative application if that suited the Applicant's situation better. On 8 November 2018 the Applicant’s Representative said they were waiting for further instructions from Mr Peios and would contact the Commission once they received them. The Applicant’s Representative was informed that a Form F8 would need to be lodged if the Applicant wished to proceed and were asked to respond to the Commission by 15 November 2018. On 13 November the Commission was notified that the Applicant’s Representative was no longer acting for Mr Peios.

[3] The Applicant was notified on 16 November 2018 that his application was incomplete and was asked to provide the Commission with payment or an application for a waiver of the lodgement fee within 14 days. A further letter to that effect was sent by express post on 4 December 2018 and notifying the Applicant that if the matter is dismissed by decision of a member of the Commission a decision and order to this effect will be issued and made publicly available via the Commission's website.

[4] The Commission subsequently attempted to contact Mr Peios on his mobile on 13 December 2018 and left a voicemail message asking him to contact the Commission urgently. Mr Peios has not subsequently contacted the Commission.

[5] 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.”

[6] 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.”

[7] Mr Peios 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 s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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