Brian France v Bobs Seafood

[2015] FWC 6834

[2015] FWC 6834

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Brian France
v
Bobs Seafood
(C2015/4419)

DEPUTY PRESIDENT KOVACIC CANBERRA, 2 OCTOBER 2015

Application to deal with contraventions involving dismissal.

[1] On 21 June 2015, Mr Brian France filed an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging a contravention of the general protections provisions of the legislation involving a dismissal. Also on 21 June 2015, Mr France filed an application for unfair dismissal remedy under s.394 of the Act and an unlawful termination dispute under s.773 of the Act. All of Mr France’s applications were incomplete in that no payment of the lodgement fees, or applications for waiver of the lodgement fees, was received. All of the applications also appear to have been lodged outside of the relevant timeframes prescribed by the Act. This decision only relates to Mr France’s application pursuant to s.365 of the Act .

[2] By way of background, the Act prevents a person from simultaneously making multiple applications relating to their dismissal from employment (see Part 6-1, Division 3, Subdivision B of the Act).

[3] On 22 June 2015, the Fair Work Commission (the Commission) contacted Mr France by telephone to advise that he was prevented under the Act from filing multiple applications in relation to his dismissal. Mr France was also advised that the applications were otherwise incomplete. Mr France was given time to consider the matters further.

[4] On 6 July 2015, the Commission telephoned Mr France regarding his applications. Mr France advised that he had a meeting with a community legal centre on 9 July 2015 and would advise the Commission of his intentions following this appointment. Mr France did not subsequently contact the Commission.

[5] On 21 July 2015, the Commission again contacted Mr France by telephone. Mr France did not answer this call. A letter was sent to Mr France by email, again confirming that Mr France was unable to proceed with all three applications, that he had not indicated to the Commission whether he wished to proceed with any application, and that in any event he had not paid the required filing fee. Among other things, the letter asked Mr France to notify the Commission within 14 days as to which of his applications he intended to proceed with.

[6] In the absence of any response from Mr France, the Commission contacted him again on 3 August 2015 by telephone. Mr France did not answer this call and a message was left asking him to contact the Commission .No further response has been received from Mr France.

[7] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[8] 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.”

[9] Mr France has failed to comply with s.367(1) of the Act and has not made application to have the prescribed fee waived.

[10] I note that Mr France’s applications under s.394 and s.773 of the Act have both been dismissed by the Commission.

[11] In circumstances where Mr France has failed, despite repeated requests, to pay the application fee required by s.367 of the Act in respect of his general protections application, I am satisfied that his application has not been made in accordance with the Act. The Application is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect [PR572569] will be issued with this decision.

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<Price code A, PR572561>