Evarard Augustine v The Trustee for Miegel Holdings Trust

[2022] FWC 3047

[2022] FWC 3047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Evarard Augustine
v

The Trustee For Miegel Holdings Trust

(C2022/6454)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 16 NOVEMBER 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr Evarard Augustine (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by The Trustee For Miegel Holdings Trust 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 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

1. The application was received by the Commission on 20 September 2022. The application was filed by the applicant’s representative.

1. On 21 September 2022, the Commission emailed the applicant with information on how to pay the filing fee and how to make a waiver application. The email stated as follows:

“If you don't make payment within 7 days your application may be dismissed.”

(emphasis omitted)

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

1. On 30 September 2022, calls were made to the applicant’s representative and the applicant. A voicemail was left with the application stating the matter was to be dismissed.

1. On 28 October 2022, the Commission called the applicant and had a discussion. The applicant suggested he was reviewing his options and would return to the Commission on 31 October 2022.

1. On 31 October 2022, the Commission contacted the applicant and left a voicemail, advising that he had not returned, and the matter would be dismissed.

1. On 4 November 2022, the Commission emailed the applicant and his representative attaching the information on how to pay sent on 21 September 2022. The email identified that the application would be dismissed, however the date was incorrect. On 8 November 2022, the Commission sent a follow-up email confirming that the matter would be dismissed on 15 November 2022.

1. On 16 November 2022, the Commission called the applicant and discussed his intentions with his application. The applicant said he did not know how to pay the fee because he had not received any emails. The applicant suggested that the Commission had said on many occasions that the application would be dismissed. The applicant terminated the call without confirming whether he intended to continue with his application.

1. To date, the applicant has not paid the filing fee or 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 $74.90. 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.

(emphasis added)

Consideration and conclusion

1. 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.

1. 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.

1. The application is dismissed.

DEPUTY PRESIDENT

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