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:

[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.

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, Daniel Robinson applied for an order to address alleged contraventions involving his dismissal by Xzact Painting. Robinson alleged that his dismissal was unfair and that there had been breaches of the Fair Work Act 2009. The primary issue before the Court was whether the application Robinson made was valid, particularly in relation to the timeframe within which it was lodged. The Court had to consider if the application was made within the required period stipulated by the Fair Work (Managing Workplace Relations) Regulations 2016.

The Court examined the procedural requirements for such applications, noting the strict timelines set out by the regulations. Robinson's application was found to be outside the allowable period, which meant it was invalid. The Court highlighted that the statutory timeframes were critical to ensure that workplace disputes were resolved efficiently and promptly. Given that Robinson's application was not lodged within the required period, the Court determined that it had no jurisdiction to entertain the matter. Consequently, the application was dismissed on the grounds of being invalid due to non-compliance with the procedural requirements.

In light of the above, the Court ruled that the application was invalid and therefore dismissed it. No further orders were made as the application itself was not validly before the Court. This decision underscores the importance of adhering to statutory timeframes when lodging applications related to workplace disputes.

Daniel Robinson v Xzact Painting

DECISION

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