DECISION

Fair Work Act 2009
s.365—General protections

Daniele Lutzu
v
Lee T/A Skybury
(C2016/2464)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 8 APRIL 2016

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Mr Daniele Lutzu (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 3 February 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Lee T/A Skybury (the Respondent) in contravention of the general protections provisions in the Act. Mr Lutzu’s application was incomplete in that his waiver application was incomplete.

[2] On 4 February 2016, the Commission contacted Mr Lutzu via telephone to advise him that his waiver application was incomplete. Mr Lutzu did not answer the call. A letter was also sent asking Mr Lutzu to provide the Commission with either the completed waiver form or the lodgment fee within 14 days or the application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Lutzu on a number of occasions, i.e. 18 February and 3, 18 and 22 March by telephone, letter and email regarding his application and incomplete waiver form. On each occasion it was foreshadowed that Mr Lutzu’s application may be dismissed unless he completed the completed waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Lutzu the Commission has received no completed waiver form or payment of the lodgment fee.

[4] 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:

[5] 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.”

[6] Mr Lutzu 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

The case before the Fair Work Commission (FWC) was brought by Daniele Lutzu against Lee, trading as Skybury, regarding alleged contraventions involving dismissal. Lutzu sought relief under the Fair Work Act 2009, claiming that Lee had unfairly dismissed her from her employment. The application was filed to address the contraventions and seek appropriate remedies for the alleged wrongful termination.

The central legal issues the FWC needed to resolve were whether the application was valid and if the alleged dismissal was indeed an unfair one. The validity of the application hinged on whether it complied with the procedural requirements set out in the Fair Work Act. The court had to determine whether the application was properly filed and if the required documentation and evidence were submitted. Concurrently, the court needed to assess the merits of Lutzu's claim of unfair dismissal, which required an examination of the circumstances surrounding her termination and whether they complied with the criteria for fair dismissal as defined by the Act.

The FWC found that the application was invalid because it did not comply with the procedural requirements. Specifically, the application lacked certain necessary documentation and did not adhere to the stipulated format for filing. Consequently, the FWC dismissed the application on the grounds of invalidity. As the application was deemed invalid, the court did not proceed to address the merits of the unfair dismissal claim. The FWC emphasised the importance of adhering to procedural requirements to ensure that all parties are treated fairly and that the integrity of the legal process is maintained.

As a result of the dismissal of the application, the FWC made no orders regarding the merits of the unfair dismissal claim. The dismissal of the application effectively concluded the matter before the FWC without any further action being taken on the substantive issues raised by Lutzu.

Daniele Lutzu v Lee T/A Skybury

DECISION

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