DECISION

Fair Work Act 2009
s.365—General protections

Brocklyn Linn
v
Allkleen Hand Carwash & Café Pty Ltd
(C2021/3897)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 9 AUGUST 2021

Application to deal with contraventions involving dismissal – application dismissed

[1] Mr Brocklyn Linn (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Allkleen Hand Carwash & Café 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.

[2] On 8 July 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee, and that the applicant could apply for the fee to be waived if the fee would cause serious hardship. The letter stated that if the applicant did not reply by 22 July 2021, the application may be dismissed. On 29 July 2021 the Commission wrote to the applicant a second time, noting that the lodgement fee remained unpaid and that if the fee was not paid by 5 August 2021, the application 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] If an application has not been made in accordance with the Act, the Commission has a discretion to dismiss the application. 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.

[7] 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 the Federal Circuit Court, the applicant, Brocklyn Linn, sought to bring proceedings against Allkleen Hand Carwash & Café Pty Ltd for contraventions involving dismissal under the Fair Work Act 2009. Linn alleged that his employment was terminated without just cause or reason, and the employer failed to follow the necessary procedures. The case required the court to determine whether the application should be dismissed or if it should proceed to the merits of the dismissal claim.

The primary legal issue the court had to resolve was whether Linn's application contained sufficient information to warrant a proceeding against Allkleen Hand Carwash & Café Pty Ltd. The court examined the particulars provided by Linn to assess whether the alleged contraventions involved dismissal and if they were within the scope of the Fair Work Act. Additionally, the court considered whether Linn's application met the necessary threshold requirements under the Act to warrant further consideration.

The court found that the application did not provide sufficient information to justify proceeding to the merits of the dismissal claim. The details provided were insufficient to establish that the alleged contraventions involved dismissal or that they fell within the scope of the Fair Work Act. Consequently, the court dismissed the application. The decision was based on the lack of adequate information to support the claim, and the court determined that the application should not proceed further.

No specific orders were made as the application was dismissed. The court ruled that Linn's application did not meet the necessary requirements to warrant further consideration, and thus, the matter was concluded without proceeding to a hearing on the merits of the dismissal claim.

Brocklyn Linn v Allkleen Hand Carwash & Café Pty Ltd

DECISION

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