Geoffrey Hunter v Goodyear Autocare

[2016] FWC 9003

[2016] FWC 9003

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Geoffrey Hunter
v
Goodyear Autocare

(C2016/6796)

COMMISSIONER CIRKOVIC MELBOURNE, 15 DECEMBER 2016

Application to deal with contraventions involving dismissal.

[1] On 17 November 2016, Mr Geoffrey Hunter (Applicant) filed an application via telephone pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging a contravention of the general protections provisions of the legislation involving a dismissal. Mr Hunter’s application was incomplete in that he did not sign and return a completed copy of the application generated by the Commission and no payment of the lodgement fee, or application for waiver of the lodgement fee, was completed.

[2] On 16 August 2016, the Fair Work Commission (Commission) contacted the Applicant via letter asking him to provide a completed application, including payment of the lodgement fee or application for waiver of the lodgement fee, within 14 days or the application may be dismissed.

[3] The Commission subsequently attempted to contact the Applicant on 28, 29 and 30 November 2016 by telephone and email regarding his incomplete application. The emails stated that Mr Hunter’s application may be dismissed if he did not provide a completed application as well as a payment of the filling fee, or a completed fee waiver application.

[4] On 5 December 2016, the Commission received a voice message from the Applicant saying that the Commonwealth Ombudsman had advised him that he was exempt the 21 days because it has been impossible for him to contact anyone because of the conditions. Later that same day the Commission attempted to contact the Applicant to discuss the contents of his voice message.

[5] On 6 December 2016, the Commission received a voice message from the Applicant saying that he was returning the Commissions call and that he would wait to hear from the Commission.

[6] The Commission subsequently attempted to contact the Applicant on 6 and 7 December 2016 by telephone and email regarding his incomplete application. The email stated that the Applicant had been allowed until close of business Wednesday, 14 December 2016 to provide a completed application, including payment of the lodgement fee or application for waiver of the lodgement fee and that if he did not do so his application would be dismissed.

[7] On 14 December 2016, the Commission received a voice message from the Applicant saying that the Commonwealth Ombudsman had advised him that the entire application could be dealt with over the phone. Later that same day the Commission attempted to contact the Applicant twice via telephone to discuss the contents of his voice message. On a third attempt the Commission spoke with the Applicant and attempted to explain that he needed to provide a completed application as well as a payment of the filling fee, or a completed fee waiver application; the Applicant repeated that the Commonwealth Ombudsman had advised him it could be dealt with over the phone; the Applicant terminated the call. The Applicant called the Commission back and then terminated the call. The Commission called the Applicant again and explained though he had made his Application via telephone he was required to provide further information and pay the filling fee or complete a fee waiver application; the Applicant terminated the call. The Applicant then emailed the Commission that the Commonwealth Ombudsman had instructed him that his application could be taken over the phone, that he had no money and that he had no intention of ever walking into a Fair Work office again. The Applicant called the Commission, asked what he needed to provide, an attempt was made to explain that he needed to provide a completed application as well as a payment of the filling fee, or a completed fee waiver application and that these could be provided via email; the Applicant terminated the call. The Applicant then emailed the Commission to say that he could not print or download the forms. The Commission sent three emails to the Applicant, the first attaching copies of the forms in two formats, the second containing the application form in the body of the email and the third containing the waver application form in the body of the email.

[8] Despite these repeated attempts to contact the Applicant the Commission has received no completed application or waiver or payment of application fee.

[9] Section 587 of the Act provides:

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[10] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and

(b) a method for indexing the fee; and

(c) the circumstances in which all or part of the fee may be waived or refunded.”

[11] The Applicant has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order 1 to that effect will be issued with this decision.

COMMISSIONER

1   PR588581

Printed by authority of the Commonwealth Government Printer

<Price code A, PR588580>