David-Riek Yakuac v Fulton Hogan Industries Pty Ltd

[2019] FWC 3702

[2019] FWC 3702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

David-Riek Yakuac
v
Fulton Hogan Industries Pty Ltd
(C2019/2075)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr David-Riek Yakuac (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that he had been dismissed by Fulton Hogan Industries Pty Ltd (Respondent) in contravention of the general protections provisions of the Act. Mr Yakuac’s application was received by the Fair Work Commission (Commission) on 29 March 2019 but was incomplete, as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[2] On 1 April 2019, the Commission telephoned the Applicant. The call was unanswered and no voicemail facility was available. On the same day, the Commission sent an email to the Applicant and the Applicant’s representative, Ms Vanessa Nikolovska of Unfair Dismissals Direct, advising that the application was incomplete and provided 14 days for the lodgement fee to be paid or a waiver application to be completed.

[3] On 13 May 2019, the Commission telephoned the Applicant as the application remained incomplete. A voicemail message was left regarding the application. A letter was sent to the Applicant and Ms Vanessa Nikolovska of Unfair Dismissals Direct by email the same day. The letter was also sent to the Applicant by registered post, and foreshadowed that the application may be dismissed unless the lodgement fee was paid or a waiver application was received.

[4] On 23 May 2019, the Commission made a further attempt to contact the Applicant by telephone regarding the application, which remained incomplete. The call was not answered, and no voicemail facility was available.

[5] To date, the Commission has not received payment of the lodgement fee or a completed waiver application from the Applicant or his representative.

[6] 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.

(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.”

[7] 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.”

[8] The applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a). An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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