Bailee Sudiaman v Harveys Towing Service

[2021] FWC 1450

[2021] FWC 1450

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Bailee Sudiaman
v
Harveys Towing Service
(C2021/828)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 23 MARCH 2021

Application to deal with contraventions involving dismissal.

[1] Mr Bailee Sudiaman (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Harveys Towing Service (Respondent) 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 17 February 2021.

[4] On 17 February 2021, the Commission contacted the Applicant regarding the unpaid lodgement fee as follows:

(a) by telephone at 4.42 pm. The Applicant advised he would like to proceed with his application. He was informed that the application would be posted to him and would need to be completed and returned to the Commission within 14 days. The Applicant advised he would be completing an application for waiver of the lodgement fee (waiver application); and

(b) by letter emailed to the Applicant at 4.55 pm, advising the Applicant that he must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

[5] On 3 March 2021, the Commission telephoned the Applicant. A voicemail message was left advising the Applicant that unless the lodgement fee was paid, or a completed waiver application was received, the application may be dismissed. It was requested that the Applicant contact the Commission.

[6] In the absence of any communication from the Applicant, on 5 March 2021 the Commission contacted the Applicant as follows:

(a) by telephone at 4.05 pm. A voicemail message was left advising the Applicant that unless the lodgement fee was paid, or a completed waiver application was received, the application may be dismissed. It was requested that the Applicant contact the Commission; and

(b) by letter emailed to the Applicant at 4.10 pm, advising the Applicant that he must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

[7] On 9 March 2021, the Commission sent to the Applicant, via Express Post, all material previously forwarded on 5 March 2021. That correspondence advised:

“The Fair Work Commission (the Commission) received a general protections dispute application from you on 17 February 2021.

•  This application was incomplete with Form F8 not completed. A completed copy of the F8 Form is requested to be filed to the Commission.

•  The Waiver Form was not completed and returned to the Fair Work Commission (a copy of the Waiver Form - Form F80 is attached).

•  This application was made without payment of the application fee of $74.50. You can apply to have the application fee waived if paying the fee would cause you serious hardship. The Form F80 - Waiver of application fee is attached.

If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting Matter Number C2021/828.

In the absence of any advice from you within 7 days of the date of this letter, this application may be dismissed.

For more information you can telephone the Commission on 1800 759 566 or go to To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[9] 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)

[10] 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

[11] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[12] 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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