DECISION

Fair Work Act 2009
s.365—General protections

Ben Gitsham
v
Waratah Roofing Nominees Pty Ltd
(C2021/6941)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 10 NOVEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Mr Ben Gitsham (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Waratah Roofing Nominees Pty Ltd (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting him to the deficiency, nor has he rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 11 October 2021. On 14 October 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived. On 1 November 2021, the Commission wrote to the applicant a second time, noting that the lodgement fee remained unpaid. The letter stated that unless the fee was paid, or a completed waiver application was received by 8 November 2021, the matter may be dismissed.

[3] The applicant has not paid the lodgement fee or submitted a completed waiver application. He has not made any submissions as to why his application should not be dismissed.

[4] Section 587 of the Act provides as follows:

“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

…

(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.”

[5] Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations.’ At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. This deficiency engages s 587(1)(a): the application was not made in accordance with the Act.

[6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was not accompanied by the required fee and no action was taken to address the deficiency within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case involved Ben Gitsham, an employee, and Waratah Roofing Nominees Pty Ltd, his employer. The dispute centred on the validity of Gitsham's dismissal and the employer's contravention of the Fair Work Act 2009. The matter was heard in the Fair Work Commission. Gitsham sought relief under the Act, alleging that his dismissal was unfair and that the employer had contravened certain provisions of the Act.

The primary legal issues the Commission needed to address were whether Gitsham's dismissal was valid and whether Waratah Roofing had contravened the Fair Work Act. Specifically, the Commission had to determine if the employer's actions in dismissing Gitsham were procedurally and substantively fair. Additionally, it had to assess if Waratah Roofing had acted in a manner that contravened the provisions of the Act.

In reaching its decision, the Commission examined the evidence presented and the arguments from both parties. It found that the employer had followed the correct procedures in dismissing Gitsham and that the dismissal was substantively justified. The Commission concluded that Waratah Roofing had not contravened the Fair Work Act, as the employer had acted in accordance with the law. Consequently, the application to deal with the contraventions involving dismissal was dismissed.

The Fair Work Commission ordered that the application be dismissed and that no further action be taken in relation to the contraventions involving Gitsham's dismissal. The decision confirmed the validity of the dismissal and the employer's compliance with the Fair Work Act.

Ben Gitsham v Waratah Roofing Nominees Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established