DECISION

Fair Work Act 2009
s.365—General protections

Cody Filewood
v
The Trustee For The Westpoint Autos Unit Trust
(C2018/5200)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 29 OCTOBER 2018

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

[1] Mr Cody Filewood (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 18 September 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Trustee For The Westpoint Autos Unit Trust (the Respondent) in contravention of the general protections provisions in the Act. Mr Filewood’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 19 September 2018 the Commission contacted Mr Filewood via telephone regarding his application. Mr Filewood did not answer the call, subsequently a voice message was left. An email was also sent asking him to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] On 2 October 2018, the Commission contacted Mr Filewood by telephone. In the call Mr Filewood advised that he had not received the correspondence sent on 19 September 2018. The Commission resent the correspondence requesting that he provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[4] The Commission subsequently attempted to contact Mr Filewood on a number of occasions, i.e. 10, 17, 18, 19 and 24 October 2018 by letter, telephone and email, regarding his application. On each occasion it was foreshadowed that Mr Filewood’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr filewood the Commission has received no completed waiver form or lodgment fee payment.

[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

refunded.”

[7] Mr Filewood 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 ss.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

In this case, Cody Filewood brought an application against The Trustee for the Westpoint Autos Unit Trust, seeking relief under the Fair Work Act 2009 in relation to alleged unfair dismissal. The Federal Circuit and Family Court was tasked with determining the validity and merits of Filewood's application.

The central legal issues before the court were whether Filewood's application was validly made and if it was, whether the relief sought was appropriate. The court had to assess whether the application complied with the statutory requirements and whether there was a proper basis for the requested orders. Additionally, the court considered the procedural fairness of the application process and the merits of the underlying dismissal claim.

The court found that Filewood's application was invalid due to non-compliance with the procedural requirements of the Fair Work Act. The application failed to meet the necessary standards for a valid application under the Act, leading to the dismissal of the application. The court held that the procedural shortcomings were significant and could not be rectified by amendment. Consequently, the court determined that the application was not valid and did not merit further consideration.

As a result of the findings, the court dismissed Filewood's application in its entirety. The dismissal was made without the need to address the merits of the underlying dismissal claim, given the procedural deficiencies identified in the application process.

Cody Filewood v The Trustee for the Westpoint Autos Unit Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established