Cole Perry v Eirinn Gas & Water Pty Ltd

[2020] FWC 2797

[2020] FWC 2797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Cole Perry
v
Eirinn Gas & Water Pty Ltd
(C2020/1264)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 4 JUNE 2020

Application to deal with contraventions involving dismissal.

[1] Mr Cole Perry (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act). He alleges that he was dismissed by Eirinn Gas & Water Pty Ltd (Respondent) in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 2 March 2020.

[4] On 3 March 2020, the Commission telephoned the Applicant’s representative, Mr Stephen Gaffney of Unfair Dismissal Experts Pty Ltd to obtain payment of the lodgement fee. Mr Gaffney advised the Commission that he was unable to make payment of the fee because his credit card was not before him. Mr Gaffney indicated that he would contact the Commission later that day to pay the lodgement fee. This did not occur.

[5] That same day, a letter was emailed to the Applicant and Mr Gaffney advising that the Applicant must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed.

[6] In the absence of compliance by the Applicant or his representative, on 24 March 2020 the Commission telephoned Mr Gaffney. Mr Gaffney advised that he would be filing a notice of representative ceasing to act. This was received by the Commission shortly after the call had concluded.

[7] Subsequently, the Commission telephoned the Applicant on two separate occasions on 24 March 2020 to discuss the incomplete application. On each occasion, the call was unanswered. On the second attempt, a voicemail requesting the Applicant telephone the Commission was converted to a text message.

[8] For completeness, that day, the Commission sent a letter to the Applicant by email and post notifying him that the application remained incomplete. The letter provided 7 days for the Applicant to file a completed waiver application or make payment of the lodgement fee.

[9] On 31 March 2020, the Commission telephoned the Applicant regarding his incomplete application. A voicemail requesting the Applicant telephone the Commission was converted to a text message.

[10] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[11] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

(emphasis added)

[12] Section 587 of the Act provides that:

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.

(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.

(emphasis added)

Consideration and conclusion

[13] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[14] In these circumstances, I am satisfied that the Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s.587(1)(a) of the Act.

DEPUTY PRESIDENT

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