Ashley Burkett v Go Solar Group Pty Ltd

[2021] FWC 910

[2021] FWC 910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ashley Burkett
v
Go Solar Group Pty Ltd
(C2020/6711)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mr Ashley Burkett (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Go Solar Group Pty Ltd in contravention of the general protection provisions of the 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 1 September 2020.

[4] On 2 September 2020, the Commission contacted the Applicant regarding the unpaid lodgement fee as follows:

(a) by telephone at 9:56am. The call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission.

(b) by letter emailed to the Applicant and his representative Selisha Pather of Employee Dismissal Claims at 9:57am, advising that the Applicant must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed.

(c) by SMS text message at 12:03pm to the Applicant’s nominated contact number requesting the Applicant contact the Commission because of a problem with his application.

[5] On 16 September 2020, the Commission telephoned the Applicant. The telephone call was answered by an unknown person who advised that the Applicant was at work and had inadvertently left his phone at home that day. It was requested that the Applicant contact the Commission regarding his incomplete application, which may be dismissed.

[6] On 21 September 2020, the Commission telephoned the Applicant. A voicemail message was left requesting the Applicant telephone the Commission regarding his incomplete application.

[7] On 23 September 2020, the Commission sent a letter to the Applicant by email. The letter advised that unless the lodgement fee was paid or a completed waiver application was received within 14 days, the application may be dismissed. A SMS text message was also sent to the Applicant regarding the incomplete application, requesting that the Applicant contact the Commission.

[8] On 25 September 2020, Mr John Bingham of Employee Dismissal Claims contacted the Commission regarding the lodgement fee. During the call, Mr Bingham advised that the lodgement fee would not be paid on behalf of the Applicant.

[9] To date, neither the Applicant nor his representative have paid the lodgement fee or filed a completed waiver application.

Legislative framework

[10] 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.

(emphasis added)

[11] Section 587 of the Act provides that:

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] Despite the Commission’s attempts to progress the application, the Applicant and his representative have failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[13] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(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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