Craig Thomas v Multiplant

[2024] FWC 1332

[2024] FWC 1332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Craig Thomas
v

Multiplant

(C2024/2677)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MAY 2024

Application to deal with contraventions involving dismissal – application dismissed.

1. On 24 April 2024, Mr Craig Thomas made an application under s.365 of the Fair Work Act 2009 (the Act). Mr Thomas alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. Mr Thomas’ Form F8 – General protections application involving dismissal (Form F8) was incomplete in that it did not contain contact details for service of the purported application on the Respondent. Further, the purported application was not accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. On 30 April 2024, the Commission attempted to contact Mr Thomas and the representative he had included on his Form F8 by sending correspondence via email. The correspondence advised that the respondent contact details needed to be provided and that the application fee needed to be paid before Mr Thomas’ case could go any further. The correspondence outlined ways to pay and included information about applying to have the fee waived. The correspondence noted that the Commission needed to hear from Mr Thomas by 14 May 2023. The correspondence also had a stamp at the top of the letter highlighting “Action required We need to hear from you within 14 days”.

1. Later that same day, an SMS was sent to the mobile telephone number provided by Mr Thomas on his Form F8 requesting that Mr Thomas contact the Commission, stating “There is a problem with your Fair Work Commission case C2024/2677. Call 1300 799 675 9am-5pm option 6. Please ignore if already actioned. DO NOT REPLY BY SMS.”

1. On 6 May 2024, the representative nominated by Mr Thomas in his Form F8 emailed the Commission stating that they are not currently assisting Mr Thomas. Mr Thomas was copied into the correspondence.

1. On 14 May 2024, the Commission attempted to call Mr Thomas. As Mr Thomas did not answer, a voicemail was left requesting that Mr Thomas contact the Commission.

2. To date, all attempts to contact Mr Thomas have been unsuccessful and he has not corresponded with the Commission since 24 April 2024 when he lodged his Form F8. He has not paid the lodgement fee or filed a completed Form F80, nor has he provided service details for the respondent.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the 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.

1. 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.

…

(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

1. In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the attempts by the Commission to contact Mr Thomas, he has not responded. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR775206.

Printed by authority of the Commonwealth Government Printer

<PR775205>