DECISION

Fair Work Act 2009
s.365—General protections

Cameron Bowes
v
Top End Sounds T/A Total Event Services
(C2018/7052)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 18 JANUARY 2019

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Mr Cameron Bowes (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 December 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Top End Sounds T/A Total Event Services (the Respondent) in contravention of the general protections provisions in the Act. Mr Cameron’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 13 December 2018 the Commission tried to contact the Applicant there was no answer or voicemail option. On 28 December 2018 the Commission tried to contact the Applicant again but there was no answer but a voicemail was able to be left. A follow up letter was emailed on the same day to the Applicant requesting payment of the application fee.

[3] A final unsuccessful attempt to contact the Applicant was made on 3 January 2019 where a voicemail was left advising that the application may be dismissed if payment was not received. On 4 January 2019 a voicemail was left for the Applicant’s Representative requesting them to follow up on the application fee. This was followed up with an email to the Applicant and copied to the Applicant’s Representative stating:

“If you wish to proceed with your application please call the Commission to provide payment or send in a completed form F80 by the end of day 10th January 2019. I have attached a blank F80 for your convenience.

Alternatively if you wish to discontinue your application please lodge the form F50, also attached, or you may call me on my number below.”

[4] No response to the email has been received from the Applicant while an out of office message was received from the Applicant’s representative stating that the representative would return on 7 January 2019. There has been no subsequent contact from the Applicant’s representative.

[5] 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

(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.”

[6] 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

[7] Mr Bowes 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.

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved Cameron Bowes as the applicant and Top End Sounds, trading as Total Event Services, as the respondent. The dispute centred on an application to address alleged contraventions, specifically the unfair dismissal of Mr Bowes by the respondent. The application was brought under the Fair Work Act 2009. The central legal issues for the Commission to decide were whether the application was valid and, if so, what relief, if any, should be granted.

The Commission considered whether the application complied with the necessary procedural requirements under the Fair Work Act. It was noted that the application did not adhere to the specific timelines and formalities required for such applications. Furthermore, the Commission examined the merits of the alleged unfair dismissal, but given the procedural non-compliance, it was determined that the application was invalid. Consequently, the application was dismissed on the basis that it did not meet the statutory requirements for processing.

In dismissing the application, the Commission emphasised the importance of procedural compliance in ensuring the effective administration of justice. It was held that the failure to follow the prescribed procedures rendered the application invalid, regardless of the substantive merits of the dismissal claim. The decision underscores the necessity for applicants to strictly adhere to the legislative framework governing such applications.

No specific orders were made in relation to the substantive claim of unfair dismissal as the procedural invalidity precluded any consideration of the merits. The dismissal of the application effectively closed the matter before the Commission in relation to the procedural grounds.

Cameron Bowes v Top End Sounds T/A Total Event Services

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established