Chirayu Niroula v Karpay Pty Ltd

[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

Printed by authority of the Commonwealth Government Printer

Chirayu Niroula filed an application with the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009, alleging dismissal in contravention of general protection provisions. Niroula's application was represented by Ms. Belinda Solomon, who identified herself as an Industrial Agent for Employee Dismissals. The application process required a lodgement fee of $83.30, which Niroula had indicated would be paid via credit card. Despite multiple communications from the FWC requesting payment and reminders, Niroula did not respond or make the payment. His representative, Employee Dismissals, also failed to act on the matter, despite being contacted by the FWC. As a result, the FWC referred the matter to Deputy President Easton, who considered the failure to comply with the fee requirements under section 367 of the Act. Given Niroula's inaction and the clear statutory requirements, Deputy President Easton dismissed the application under section 587(1)(a) of the Act for non-compliance with the Act’s provisions.

The central legal issue in this case was whether the FWC could dismiss Chirayu Niroula's application for failure to pay the required lodgement fee, as mandated by section 367 of the Fair Work Act 2009. The application was made under section 365, which requires adherence to the Act’s procedural requirements, including the payment of the prescribed fee. Niroula's failure to pay the fee despite multiple reminders and his lack of response to the FWC's communications raised the question of whether the FWC had the discretion to dismiss the application under section 587(1)(a) of the Act. The issue also involved the interpretation of section 587, which allows for the dismissal of an application if it is not made in accordance with the Act, but prohibits dismissal on the basis of frivolity or lack of reasonable prospects of success for applications under section 365.

Deputy President Easton examined the statutory framework and the procedural requirements for lodging an application under section 365 of the Fair Work Act 2009. Given the clear directive in section 367 that an application "must be accompanied by any fee prescribed by the regulations," and the absence of any action by Niroula or his representative to address the fee payment, the Deputy President concluded that the application was not made in accordance with the Act. The repeated attempts by the FWC to contact Niroula and his representative, along with the explicit warnings about the potential consequences of non-compliance, further supported the decision to dismiss the application. Deputy President Easton exercised the discretion provided under section 587(1)(a) to dismiss the application due to the non-compliance with the statutory fee requirement. Consequently, the application was dismissed, and no further action will be taken on the matter.

The final orders of the Fair Work Commission were to dismiss Chirayu Niroula's application under section 365 of the Fair Work Act 2009 due to the non-payment of the required lodgement fee and failure to address the FWC's communications. The dismissal was based on the clear statutory requirement that the application be accompanied by the prescribed fee, as per section 367 of the Act. The Deputy President noted that despite multiple reminders and warnings, Niroula had not taken any action to rectify the deficiency. As a result, the application was dismissed in accordance with section 587(1)(a) of the Act.

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