Fillipo Tapner v R.P.M Tyres (Hastings) Pty. Ltd
[2023] FWC 2070
•18 AUGUST 2023
| [2023] FWC 2070 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Fillipo Tapner
v
R.P.M. Tyres (Hastings) Pty. Ltd.
(C2023/4583)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 18 AUGUST 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
On 31 July 2023, Mr Fillipo Tapner made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Mr Tapner alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was lodged by Employee Dismissals, an entity that indicated in the Form F8 General protections application involving dismissal form (Form F8) that it was Mr Tapner’s representative. The Application was not accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached. In its email to the Commission accompanying the Form F8, Employee Dismissals outlined the following:
“Our client shall be responsible for making payment of the lodgement fee in this matter. Please contact the Applicant on the telephone number specified in the Form F8 to process payment of the lodgement fee by credit or debit card.
Please kindly contact our office by reply email should you experience any issues processing timely payment of the lodgement fee, so that we can raise any such issues with our client as a matter of priority.”
On 3 August 2023, the Commission emailed correspondence to Mr Tapner’s nominated email address advising him that his application required payment of the application fee or a completed Form F80, if he wished to proceed with the application. The email further stated as follows:
“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.
…
If you don’t make payment within 7 days your application may be dismissed.”
On 4 August 2023, an SMS notification was sent to Mr Tapner’s nominated telephone number. The SMS advised Mr Tapner to take action in compliance with the email from the Commission regarding payment of the application fee.
On 7 August 2023, the Commission emailed correspondence to Mr Tapner’s nominated email address, reminding him that his application required payment of the application fee, or a completed Form F80 if he wished to proceed with the application. The correspondence instructed Mr Tapner on how to pay the application fee or complete a Form F80, and further stated as follows:
“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.
On 10 August 2023 a final attempt was made by the Commission to contact Mr Tapner on his nominated telephone number. The call was not answered, and a voicemail message was left explaining to Mr Tapner that his application fee was still outstanding and that his application was at risk of being dismissed.
On 11 August 2023, the Commission emailed correspondence to Employee Dismissals. This outlined the content of the correspondence that had been sent to Mr Tapner on 7 August 2023 and in particular, highlighted that Mr Tapner needed to pay the application fee (or apply to have the fee waived) or his application may be dismissed.
To date, there has been no response to this correspondence by Employee Dismissals and Mr Tapner has neither paid the application fee nor filed a completed Form F80.
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.
Consideration and conclusion
In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.
Despite the attempts by the Commission to contact him, the reminders and the multiple requests, Mr Tapner has not responded. His representative, Employee Dismissals, has also failed to respond to the Commission. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.
The application is dismissed. An Order[2] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].
[2] PR765338.
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