Athanasios Gatziouras v ASAP Recruitment Pty Ltd

[2016] FWC 4208

[2016] FWC 4208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Athanasios Gatziouras
v
ASAP Recruitment Pty Ltd; Linpac Packaging Australia Pty Ltd
(C2016/3724)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 30 JUNE 2016

Application to deal with contraventions involving dismissal - invalid application.

[1] Mr Athanasios Gatziouras (the Applicant) made an application over the telephone on 11 May 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by ASP Recruitment Pty Ltd and Linpac Packaging Australia Pty Ltd (the Respondents) in contravention of the general protections provisions in the Act. Mr Gatziouras’s application was incomplete in that a signed and completed application was not returned to the Fair Work Commission (the Commission).

[2] Rule 9 of the Fair Work Commission Rules 2013 provides that:

“9 Telephone applications

…
(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or
(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

…”

[3] On 11 May 2016 the Commission sent Mr Gatziouras by email and letter his incomplete telephone application form. The correspondence requested he return the completed and signed application within 14 days or the application may be dismissed.

[4] On 6 June 2016, the Commission contacted Mr Gatziouras by telephone. Mr Gatziouras did not answer the call. Subsequently an email was sent asking him to provide the Commission with a completed application within eight days or the application may be dismissed.

[5] The Commission subsequently attempted to contact Mr Gatziouras on 17 June 2016 by telephone, letter and email regarding his incomplete application. On each occasion it was foreshadowed that the application may be dismissed unless he completed the application. Despite these repeated attempts to contact Mr Gatziouras the Commission has received no completed application form.

[6] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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:

(c) on its own initiative; or
(d) on application.”

[7] Mr Gatziouras has failed to comply with s.587 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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