Chirayu Niroula v Karpay Pty Ltd
[2024] FWC 1814
•17 JULY 2024
| [2024] FWC 1814 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Chirayu Niroula
v
Karpay Pty Ltd
(C2024/1568)
| DEPUTY PRESIDENT EASTON | SYDNEY, 17 JULY 2024 |
Application to deal with contraventions involving dismissal
On 8 March 2024, Chirayu Niroula made an application under s.365 of the Fair Work Act 2009 (Cth). Mr Niroula alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was prepared by Ms Belinda Solomon in her capacity as “Industrial Agent for and on behalf of Employee Dismissals.” The final page of the application indicated that the Application Fee would be paid by credit card and nominated Mr Niroula as the payer. The form itself says in this regard: “If paying by credit card, please provide the payer’s details below and a Commission officer will contact the payer by telephone within 3 business days from the date of lodgment.”
Fair Work Commission staff sent a payment request to Mr Niroula directly on 14 March 2024. Staff also sent an SMS on 15 March 2024 asking Mr Niroula to action his payment request email. Mr Niroula did not respond to either message.
A reminder to pay was sent to Mr Niroula on 20 March 2024. No response was received.
On 4 April 2024 Commission staff made a further telephone call to Mr Niroula’s nominated telephone number and left a voice message asking him to make payment, advising that his matter is at risk of being discontinued. Mr Niroula did not respond to this message.
The Commission again tried to call Mr Niroula on his mobile phone on 12 April 2024. Mr Niroula did not answer the call. Once again a voicemail message was left advising him that payment was still required for the matter to continue, and that if payment is not received his application may be dismissed.
On 23 April 2024 the Commission emailed a reminder to pay to Mr Niroula’s representative, Employee Dismissals. They did not respond.
A call was made by Commission staff to the Applicant’s representative, Employee Dismissals on 24 April 2024 regarding the outstanding payment, a voicemail message was left advising that if payment is not received by 26 April 2024 the matter may be dismissed.
Nobody from Employee Dismissals afforded the Commission the courtesy of returning the call. It appears that Employee Dismissals has done nothing to assist Mr Niroula since his application was lodged.
The matter was referred to my chambers on 6 June 2024 and there were further attempts to contact Mr Niroula by telephone on 7 June 2024, 1 July 2024 and 9 July 2024. Voicemail messages were once again left for Mr Niroula asking him to take action.
One final email was sent to Mr Niroula on 12 June 2024.
To date, Mr Niroula has not responded to any correspondence from the Fair Work Commission, nor has he paid the lodgement fee or applied for a waiver of the fee.
Legislative framework
Section 367(1) of the Act requires that an application under s.365 “must be accompanied by any fee prescribed by the regulations.” At the time Mr Niroula’s application was made the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.
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.
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.”
Consideration and conclusion
Mr Niroula has neither paid the lodgement fee or sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.
Mr Niroula has taken no action to address the deficiency despite several invitations to do so and despite being notified of the potential consequences for his application if the deficiency is not rectified. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.
The application is dismissed.
DEPUTY PRESIDENT
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