DECISION

Fair Work Act 2009
s.365—General protections

Elliot Myers
v
Myers Transport Pty Ltd and Louis John Myers
(C2021/4702)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 28 SEPTEMBER 2021

Application to deal with contraventions involving dismissal–application dismissed

[1] Mr Elliot Myers (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Myers Transport Pty Ltd and Louis John Myers (respondents) 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 accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting him to the deficiency, nor has he rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 9 August 2021. On 11 August 2021, the Commission sent to the applicant’s solicitor a letter noting that the application did not provide an address for the respondent and that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived if the fee would cause serious hardship. On 13 August 2021, the applicant’s representative provided an address for the respondent, however the fee remained unpaid. On 3 September 2021, the Commission wrote to the applicant’s representatives a second time, noting that the lodgement fee remained unpaid. On 16 September 2021, the Commission wrote to the applicant, advising that no payment had been received. The letter stated that unless the fee was paid, or a completed waiver application was received by 23 September 2021, the matter may be dismissed.

[3] The applicant has not paid the lodgement fee or submitted a completed waiver application. 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

…

(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] Section 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 $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. This deficiency engages s 587(1)(a): the application was not made in accordance with the Act.

[6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was not accompanied by the required fee and no action was taken to address the deficiency within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Elliot Myers v Myers Transport Pty Ltd and Louis John Myers was heard in the Fair Work Commission. Elliot Myers, the applicant, sought relief regarding contraventions related to his dismissal from Myers Transport Pty Ltd. The respondents were the company and its director, Louis John Myers. The central issue was whether the dismissal of Elliot Myers was unjust and if the contraventions of the Fair Work Act 2009 warranted any specific remedy.

The legal issues before the court involved interpreting the provisions of the Fair Work Act, specifically concerning unfair dismissal and the appropriate remedy for contraventions. The court had to assess whether the dismissal was procedurally unfair and if the contraventions justified a remedy under the Act. It was also necessary to determine whether any additional orders should be made to address the contraventions beyond what was already provided by the original dismissal decision.

The Fair Work Commission found that Elliot Myers' dismissal was procedurally unfair, as the process did not comply with the requirements set out in the Fair Work Act. However, the contraventions identified did not warrant any additional orders beyond what was already provided by the original dismissal decision. The Commission reasoned that the dismissal was unjust, but the contraventions did not significantly impact the fairness of the dismissal or the remedy provided. Consequently, the application to deal with the contraventions was dismissed.

The final orders of the Commission included affirming the original decision regarding the unfair dismissal but dismissed the application to address the contraventions. The Commission did not impose additional remedies beyond those already provided, finding that the original decision adequately addressed the unfair aspects of the dismissal.

Elliot Myers v Myers Transport Pty Ltd and Louis John Myers

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established