Ethan Beckwith v Revetment Systems Australia (WA) Pty Ltd

[2023] FWC 144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ethan Beckwith
v

Revetment Systems Australia (WA) Pty Ltd

(C2022/6222)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 19 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

Mr Ethan Beckwith (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Revetment Systems Australia (WA) Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

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 lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

The application was received by the Commission on 8 September 2022.

On 9 September 2022 the Commission emailed the applicant with information explaining how to pay the filing fee and how to make a waiver application. The email, together with a text message sent to the applicant on the same date, put the applicant on notice that the application may be dismissed if the filing fee was not paid. An email to the same effect was sent to the applicant’s representative on 12 September 2022.

Telephone calls were made to the applicant on 15 September and 27 September 2022. Voicemails were left on both occasions advising the applicant that the matter was at risk of being dismissed for failure to pay the filing fee.

On 28 October 2022, a further voicemail was left with the applicant advising that a failure to pay the filing fee would result in the matter being dismissed.

To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

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.

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.

(emphasis added)

Consideration and conclusion

The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

The applicant has taken no action to address the deficiency despite being notified of it 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.

The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Ethan Beckwith v Revetment Systems Australia (WA) Pty Ltd, the applicant sought to bring an application under section 365 of the Fair Work Act 2009. The applicant, Mr Ethan Beckwith, alleged that he was dismissed by Revetment Systems Australia (WA) Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act. The respondent company denied these allegations. The application was dismissed by Deputy President Millhouse on 19 January 2023, on the basis that the application was not accompanied by the required fee prescribed by the Fair Work Regulations 2009, nor was a waiver application completed.

The key legal issue the court was required to decide was whether the application could proceed despite the applicant's failure to pay the required fee or apply for a waiver. The court was required to determine if the applicant's failure to pay the fee or apply for a waiver was a sufficient ground for dismissal under section 587(1)(a) of the Act. The court also had to consider whether the dismissal was justified under section 587(2) of the Act, which provides that an application cannot be dismissed on the ground that it is frivolous or vexatious or has no reasonable prospects of success.

The court found that the applicant had not taken any action to address the deficiency in the application despite being notified of it by the Commission on multiple occasions. The court considered that the applicant's failure to pay the fee or apply for a waiver was a sufficient ground for dismissal under section 587(1)(a) of the Act. The court also found that the dismissal was justified under section 587(2) of the Act as the application was not made in accordance with the Act. The court therefore dismissed the application. The court did not consider it necessary to determine if the application was frivolous or vexatious or had no reasonable prospects of success.

The court dismissed the application under section 365 of the Fair Work Act 2009, on the basis that the application was not accompanied by the required fee prescribed by the Fair Work Regulations 2009, nor was a waiver application completed. The court found that the applicant's failure to pay the fee or apply for a waiver was a sufficient ground for dismissal under section 587(1)(a) of the Act. The court did not consider it necessary to determine if the application was frivolous or vexatious or had no reasonable prospects of success. The dismissal of the application is final and there is no appeal available to the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established