DECISION

Fair Work Act 2009
s.365—General protections

Ben Hogan
v
Cable Layers Australia Pty Ltd
(C2021/5320)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 1 OCTOBER 2021

Application to deal with contraventions involving dismissal – application dismissed

[1] Mr Ben Hogan (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Cable Layers Australia 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 2 September 2021. On 3 September 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 if the fee would cause serious hardship. On 23 September 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 30 September 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

In this case, Ben Hogan brought an application against Cable Layers Australia Pty Ltd in the Fair Work Commission, contesting his dismissal. The dispute centres on the fairness and procedural correctness of the dismissal, with Hogan asserting that his termination was unjust and without proper adherence to the required processes.

The primary legal issues the court needed to address were whether Cable Layers Australia Pty Ltd followed the correct procedures in dismissing Hogan and whether the dismissal was substantively fair. Specifically, the court examined if the employer provided adequate reasons for dismissal and if there was any procedural unfairness in the handling of the dismissal process. Additionally, the court considered whether the employer had a valid reason for the dismissal, such as misconduct or capability.

The Fair Work Commission dismissed Hogan's application. The court found that Cable Layers Australia Pty Ltd had followed the correct procedures in dismissing Hogan, providing sufficient reasons and adhering to the necessary steps outlined in the Fair Work Act. The court also determined that the dismissal was substantively fair, as Hogan's conduct warranted termination. The findings led to the conclusion that the employer had valid reasons for the dismissal, which were adequately supported and justified. Consequently, the application was dismissed.

Ben Hogan v Cable Layers Australia Pty Ltd

DECISION

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