Daryl Meikle v Epsa Pacific Pty Limited

[2023] FWC 285

[2023] FWC 285

The attached document replaces the document previously issued with the above code on 20 February 2023.

·   Accepted tracked changes

Associate to Deputy President Millhouse

Dated 20 February 2023

[2023] FWC 285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Daryl Meikle

v

Epsa Pacific Pty Limited

(C2022/8419)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 20 FEBRUARY 2023

Application to deal with contraventions involving dismissal

1. Daryl Meikle (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the filing fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has this been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed on 21 December 2022 by telephone.

1. On 21 December 2022, the Commission emailed the applicant. The email identified aspects of the application which remained incomplete and noted that the applicant had advised the Commission when making the application that he would make a waiver application but had not done so.

1. On 4 January and 9 January 2023, the Commission telephoned the applicant. On each occasion, a voice message was left. The messages requested that the applicant contact the Commission as soon as possible as the application was at risk of being dismissed for non-payment of the filing fee.

1. To date, the applicant has not responded to the Commission’s correspondence regarding the incomplete application. Further, the applicant has not paid the filing fee nor filed a completed waiver application.

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 $77.80. 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. The applicant has not completed their incomplete application, paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiencies despite being notified by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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