[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

(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

(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

Printed by authority of the Commonwealth Government Printer

In the case of Cole Perry v Eirinn Gas & Water Pty Ltd, the applicant, Cole Perry, sought to have the court exercise its discretion to direct that contraventions of the Fair Work Act 2009 (Cth) involving his dismissal be dealt with by the Fair Work Commission. The dispute arose when Perry was dismissed by his employer, Eirinn Gas & Water Pty Ltd, and subsequently lodged a claim with the Federal Circuit Court. The primary legal issue before the court was whether the contraventions of the Fair Work Act that Perry alleged were associated with his dismissal were appropriately dealt with by the Federal Circuit Court or should be transferred to the Fair Work Commission for adjudication.

The court examined the legislative framework provided by the Fair Work Act, particularly sections 545 and 546, which outline the circumstances under which the court may exercise its discretion to transfer matters to the Fair Work Commission. It was necessary to determine if the alleged contraventions were indeed related to unfair dismissal and whether they fell within the scope of matters that the Fair Work Commission was empowered to address. The court considered the nature and scope of the alleged contraventions, including whether they were within the jurisdiction of the Fair Work Commission or required a different form of judicial remedy.

After thorough analysis of the statutory provisions and the facts of the case, the court concluded that the alleged contraventions were indeed related to unfair dismissal and fell within the jurisdiction of the Fair Work Commission. Consequently, the court exercised its discretion under section 546 of the Fair Work Act to transfer the matter to the Fair Work Commission for further proceedings. This decision was based on the understanding that the Fair Work Commission was the appropriate body to deal with matters involving unfair dismissal and associated contraventions of the Fair Work Act. The court's decision was guided by the legislative intent to streamline the resolution of such disputes within the Fair Work system.

The final orders of the court were that the matter be transferred to the Fair Work Commission for the adjudication of the contraventions of the Fair Work Act that were associated with Cole Perry's dismissal. This transfer ensured that the dispute would be resolved in accordance with the specific provisions and procedures applicable to unfair dismissal claims under the Fair Work Act.

Cole Perry v Eirinn Gas & Water Pty Ltd

DECISION

Context

Legislative framework

Consideration and conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established