Daniel Robinson v Xzact Painting

[2016] FWC 4206

[2016] FWC 4206

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Daniel Robinson
v
XZACT Painting
(C2016/3618)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 30 JUNE 2016

Application to deal with contraventions involving dismissal - invalid application.

[1] Mr Mark Howard of Stacks Law Firm Southern, representing Mr Daniel Robinson (the Applicant), made an application which was received by the Fair Work Commission (the Commission) on 3 May 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that Mr Robinson had been dismissed by XZACT Painting (the Respondent) in contravention of the general protections provisions in the Act. The application was incomplete in that it was not accompanied by payment of the required application fee or by a request to have the application fee waived.

[2] On 9 May 2016, the Commission attempted to contact Mr Howard by letter. The letter asked Mr Howard to provide the Commission with a completed waiver form or the application fee within 14 days or the application may be dismissed.

[3] On 20 May 2016, the Commission contacted Mr Howard via telephone. Mr Howard advised that he was having difficulty contacting his client. Mr Howard advised that on the following Monday, 23 May 2016, he would contact the Commission to arrange payment, or send a cheque via post.

[4] The Commission subsequently attempted to contact both Mr Howard and Mr Robinson on a number of occasions, i.e. 2 and 6 June 2016 by telephone, letter and email. On each occasion it was foreshadowed that Mr Robinson’s application may be dismissed unless the waiver form was completed or the lodgement fee paid. Despite these repeated attempts to contact both Mr Robinson and Mr Howard the Commission has received no completed waiver form or payment of the application fee.

[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
(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:

(c) on its own initiative; or
(d) 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
(c) the circumstances in which all or part of the fee may be waived or refunded.”

[7] Mr Robinson 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.

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