Brandon Hajje v Vescio, Nicholas James T/A N & a Concrete Services

[2019] FWC 1443

[2019] FWC 1443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brandon Hajje
v
Vescio, Nicholas James T/A N & A Concrete Services
(C2019/404)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 MARCH 2019

Application to deal with contraventions involving dismissal - application dismissed.

[1] Mr Brandon Hajje (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 14 January 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Vescio, Nicholas James T/A N & A Concrete Services (the Respondent) in contravention of the general protections provisions in the Act. Mr Hajje’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 15 January 2019 the Commission left a voicemail for the Applicant seeking payment of the lodgement fee. This was followed up with a letter which was emailed to the Applicant and his representative notifying them that the lodgement fee had not been paid and that the he could apply for the fee to be waived.

[3] On 15 January 2019 the Applicant contacted the Commission very upset that he had to pay a fee as his representative, Unfair Dismissals Direct (UDD), had informed him that he was not required to pay a fee for unfair dismissals. The Commission explained that UDD had filed a general protection application opposed to an unfair dismissal application and that he would have to make payment or file the waiver at the Commission to continue with his application. The Applicant was also advised to speak with his representative at UDD if he was not happy with their arrangement.

[4] The Commission contacted the Applicant on 22 January 2019 to follow up on the 15 January 2019 conversation. The Applicant advised that he had not had time to follow up with UDD about the payment. The Applicant was informed that correspondence was emailed on 15 January 2019 to UDD and himself allowing 14 days within which to make payment or submit the waiver form. The Applicant was advised that if he does not get back to the Commission the application may be closed or he could file a waiver application if payment of the fee would cause financial hardship. He was urged to respond to the letter within the 7 days.

[5] The Commission tried to contact the Applicant on 1 and 15 February 2019 but the calls went to another person’s voicemail. A message was not left on either occasion.
[6] On 22 February the Commission again spoke with the Applicant about the payment of the lodgement fee. The Applicant advised that he had spoken to someone from the Commission about possibly withdrawing the application. It was explained to the Applicant that he could file a waiver form and may not need to pay the fee and that he could still proceed with the application. The Applicant requested a blank waiver form and that he would respond within 5 business days.

[7] Contact was made again with the Applicant 1 March 2019 where he advised someone at the Commission that he wished to discontinue the matter. It was explained once the matter had been discontinued the matter could not be reopened. The Applicant stated he was not sure how he wanted to proceed and requested a call back around 3.00pm that day. The Applicant was contacted later that day and a voicemail was left for the Applicant to contact the Commission by close of business otherwise the matter would be allocated to a Member of the Commission to consider whether the application should be dismissed.

[8] No response has been received from the Applicant.

[9] 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.

(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.”

[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.”

[11] Mr Hajje has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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