Diarmuid Walshe v Kelly Electrical Pty Ltd

[2021] FWC 4340

[2021] FWC 4340

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Diarmuid Walshe
v
Kelly Electrical Pty Ltd
(C2021/2904)

DEPUTY PRESIDENT COLMAN MELBOURNE, 21 JULY 2021

Application to deal with contraventions involving dismissal – application dismissed

[1] Mr Diarmuid Walshe (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Kelly Electrical Pty Ltd (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not made in accordance with the procedural rules, and the lodgement fee remains unpaid. The applicant has not responded to correspondence from the Commission alerting him to these deficiencies, nor has he rectified those deficiencies. I have therefore decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 21 May 2021. On 25 May 2021, the Commission sent to the applicant a letter stating that the application was incomplete because it was neither signed nor dated, and that if the application was not completed it may be dismissed. On 21 June 2021, the Commission sent to the applicant a further letter stating that the application remained incomplete and that if it was not completed it may be dismissed. On 16 July 2021, the Commission wrote to the applicant a third time, noting that the lodgement fee had not been paid and that no application had been made for a waiver of the fee. The correspondence stated that the applicant would have until 4:00pm on 20 July 2021 to file any submissions as to why his application should not be dismissed.

[3] The applicant has not amended his application. He has not paid the lodgement fee or sought a waiver. He has not made any submissions as to why his application should not be dismissed.

[4] 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.”

[5] There are two respects in which the application is not made in accordance with the Act. First, s 585 of the Act states that an application to the Commission ‘must be in accordance with the procedural rules (if any) relating to applications of that kind’. The Fair Work Commission Rules require that a document lodged by a party be signed and dated (rule 17). The application in the present matter was not signed and dated. It did not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

[6] Secondly, s 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations’. At the time the application was made, the regulations prescribed a fee of $74.50. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor sought a fee waiver. The application is not made in accordance with s 367 of the Act.

[7] Both of these deficiencies engage s 587(1)(a). The Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was incomplete and that it had not been accompanied by the required fee. The applicant has taken no action to address the deficiencies. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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