Brendan Hemming v M.A Staier & S.s Staier

[2023] FWC 1908

[2023] FWC 1908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Brendan Hemming
v

M.A Staier & S.S Staier

(C2023/1965)

VICE PRESIDENT CATANZARITI SYDNEY, 2 AUGUST 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 4 April 2023, Mr Brendan Hemming (the Applicant) made an application under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was incomplete as the Applicant had neither signed nor dated the Form F8. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The applicant has not responded to correspondence from the Commission alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.

Context

1. On 13 April 2023, the Commission contacted the Applicant at his nominated phone number and advised him that his application was incomplete as it was not signed or dated and remained unpaid. The Applicant did not answer the call and a voicemail was left informing him of the issues with his application and requesting that it be re-sent in updated form. The Applicant was asked to provide this by 27 April 2023, or the matter would very likely be dismissed.

1. Also on 13 April 2023, correspondence was sent to the Applicant’s nominated email address advising him to send an updated application with accompanying payment within 14 days (or by 27 April 2023) if he wished to proceed with his claim. The email also contained instructions on what information was missing from the Applicant’s application, how to re-submit the necessary documentation, how to pay the required fee, or alternatively how to submit a fee swaiver application.

1. Furthermore, on 13 April 2023, an SMS was sent to the Applicant’s nominated phone number putting him on notice that there was a problem with his application and inviting him to call back at the provided number.

2. On 2 May 2023, the Applicant was contacted by Telephone at his nominated phone number twice, neither of which calls were answered. The first voicemail left to the Applicant informed him that his application was still incomplete as it was not signed or dated, and that a completed application must be returned by COB 3 May 2023, or the matter would be referred to a Commission Member and very likely dismissed. The second voicemail left to the Applicant informed him that his application remained unpaid in addition to being incomplete, and that payment of the required fee was needed by COB 3 May 2023 alongside a completed Form F8 for his matter to proceed. Both voicemails provided the Applicant with a callback number for the Commission.

1. To date, the Applicant has not lodged a completed application form, paid the required lodgement fee, or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s.365 of the Act, s.367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. 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

(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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

Consideration and conclusion

1. The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.

2. The application is dismissed.

VICE PRESIDENT

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